Breyer v. Pacific University
OPINION AND ORDER: For the foregoing reasons, Pacific's Motion for Summary Judgment (ECF No. 63 ) is GRANTED in its entirety. DATED this 10th day of March 2020 by United States Magistrate Judge John V. Acosta. (pjg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
REBEKAH JOY BREYER, an individual,
Case No. 3: 17-cv-00036-AC
PACIFIC UNIVERSITY, a domestic
A COSTA, Magistrate Judge:
Rebekah Joy Breyer ("Breyer") filed this lawsuit against Pacific University ("Pacific")
alleging Pacific discriminated against her in violation of Title III of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12182, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794
("Section 504"). Breyer also brings claims for breach of contract and estoppel under state law.
Currently before the court is Pacific's Motion for Summary Judgment ("Motion"). (Def. Pacific
PAGE 1 - OPINION AND ORDER
University's Mot. For Summ. J., ECF No. 63 ("Mot.").) For the following reasons, Pacific's Motion
is GRANTED in its entirety.
Preliminary Procedural Matter
Pacific challenges a portion of the Declaration of Rebekah Breyer ("Breyer Declaration"),
which was submitted in opposition to Pacific's Motion. (Deel. of Rebekah Breyer in Opp'n to
Pacific University's Mot. for Summ. J., ECF No. 81 ("Breyer Deel.").) Specifically, Pacific alleges
certain assertions made in Paragraph 3 of the Breyer Declaration explicitly contradict Breyer' s
previous deposition testimony, and that she has failed to explain or otherwise reconcile such
contradictions. (Def. 's Reply in Supp. of Mot. for Summ. J., ECF No. 92 ("Def. 's Reply"), at 34.)
Consequently, Pacific argues this court should disregard the offending statements included in
Paragraph 3 in considering this Motion. (Id. at 35.)
The Supreme Comi has recognized the "vhiual unanimity" of circuit courts that "a paiiy
cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting
his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that
party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the
disparity." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). The Ninth Circuit
follows this rule, reasoning that: "'If a party who has been examined at length on deposition could
raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this
would greatly diminish the utility of summary judgment as a procedure for screening out sham issues
of fact."' Kennedy v. Allied Mut. Ins. Co., 952 F .2d 262, 266 (9th Cir. 1991) (internal citations
omitted) (quoting Foster v. Arcata Associates, 772 F .2d 1453, 1462 (9th Cir. 1985), cert. denied, 4 75
U.S. 1048 (1986)). However, the "rule is in tension with the principle that a court's role in deciding
PAGE 2 - OPINION AND ORDER
a summary judgment motion is not to make credibility determinations or weigh conflicting evidence"
and "'should be applied with caution."' VanAsdale v. Int'! Game Tech., 577 F.3d 989,998 (9th Cir.
2009) (quoting Sch. Dist. No. JJ v. ACandS, Inc., 5 F.3d 1255, 1264 (9th Cir. 1993)).
This rule does not extend to cases "in which a contradictory affidavit is introduced to explain
portions of earlier deposition testimony. Rather, [the rule is] concerned with 'sham' testimony that
flatly contradicts earlier testimony in an attempt to 'create' an issue of fact and avoid summary
judgment." Id. at 267. "The non-moving party is not precluded from elaborating upon, explaining
or clarifying prior testimony elicited by opposing counsel on deposition; minor inconsistencies that
result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for
excluding an opposition affidavit." Messickv. Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir.
1995). Therefore, the district court must determine whether the contradictory testimony was given
in an honest effort to clarify, or was an intentional alteration, designed to create a genuine issue of
material fact. Melendez v. Morrow Cty. Sch. Dist., No. 07-785-AC, 2009 WL 4015426, at *14-15
(D. Or. Nov. 19, 2009) (declaration statements did not directly contradict prior testimony and,
therefore, were admissible to create a genuine issue of material fact).
Paragraph 3 of the Breyer declaration states, in relevant part:
I reviewed Exhibit 11 (Pacific's Non-Discrimination Policy); Exhibit 77 (Preparing
for Postsecondary Education page from Pacific's website); Exhibit 78 (Educational
Access for Students with Disabilities: Rights and Responsibilities to Assure
Educational Access for Students with Disabilities page from Pacific's website); and
Exhibit 85 (Pacific University Diversity page from Pacific's website). I reviewed all
of these exhibits prior to applying to Pacific.
Pacific asserts this portion of Paragraph 3 contradicts Breyer's deposition
testimony regarding the information she reviewed before she decided to apply to Pacific. (Def.' s
PAGE 3 - OPINION AND ORDER
Reply, at 34.)
With regard to Breyer' s application decisions, the deposition testimony referenced by Pacific
What information did you rely on in making your decision about where to apply?
What kinds of documents did you review?
How did you get information about [Pacific] and [University of Denver]?
DU, because it's in Colorado, I was able to meet with the director personally, and
then I looked at their website. And then Pacific, I looked at just their website.
What paiis of the website did you look at?
As I recall, everything that had to -- to do with the actual PsyD program.
Okay. So can you list what those things were? What information were you looking
for about the PsyD program?
I can recall course work, there was a diversity iss [sic] -- inclusion, faculty of course.
And with each university I looked at both the -- each faculty's specialty.
I -- I think that each -- each website I tried to get a -- get a feel for the overall feeling
of the program, as much as you can on a website.
Anything else that comes to mind?
I did look at that-- what is it called? -- the EPPP test, performance -- it's the test that
you had to take a day in PsyD to get licensed.
So is that a test that's administered by the State?
Honestly, I don't know the details. Like I know it is the State -- like State regulated,
but I'm not sure, yeah.
PAGE 4 - OPINION AND ORDER
So it's called the EPPP test?
I believe so, something --
But that's a test that is relevant to licensure, not getting your PsyD, right?
But I wanted to look at --
-- if -- if the school prepared you enough.
Right. What specifically did you review on Pacific's website about diversity and
I think -- hm. Let me think about it, because I did look at a lot of websites. As I
recall, they specifically had a diversity video, I think, or an actual section that -- that
talked about diversity. Yeah, that's all I can really recall at this point.
(Dep. Of Rebekah Joy Breyer dated October 26, 2017 ("2017 Breyer Dep."), 1 78:9-80:11.)
Paragraph 3 does not directly contradict this testimony with regard to Breyer' s assertion that
she reviewed materials concerning diversity prior to applying to Pacific. Rather, Paragraph 3
clarifies or supplements such testimony because it provides the specific page on Pacific's website
that Breyer reviewed with respect to the topic of diversity. The court therefore will consider
The "Oct. Breyer Dep." is filed as part ofExhibit 1 of the Declaration of Taylor D. Richman
dated July 20, 2018 ("July Richman Declaration") (ECF No. 64-1, at 1--44), Exhibit C of the
Declaration of Christina Stephenson ("Stephenson Declaration") (ECF No. 85-3), and Exhibit 10 of
the Declaration of Taylor D. Richman dated October 10, 2018 ("Oct. Richman Declaration") (ECF
PAGE 5 - OPINION AND ORDER
Paragraph 3 insofar as it alleges Breyer reviewed the Diversity page on Pacific's website prior to
applying to Pacific.
However, Paragraph 3 contradicts Breyer's testimony concerning the other materials she
claims to have reviewed before applying to Pacific. Specifically, Breyer testified that as far as she
could recall, her review of Pacific's website was limited to "everything that had ... to do with the
PsyD program." When asked for clarification, Breyer testified that other than the specific "section
that ... talked about the diversity," she reviewed information on Pacific's website regarding the
course work, faculty, and licensing requirements associated with the PsyD program. Nothing in
Breyer' s testimony suggests she reviewed any information outlining the legal rights of disabled
students or Pacific's legal obligations with regard to disabled students and its commitment to
fulfilling those obligations. In fact, there is no indication her pre-application research strayed beyond
those portions of the Pacific website explicitly dedicated to communicating the substance of the
PsyD program and the qualifications of its faculty, much less that she found and reviewed Pacific's
nondiscrimination policy and various pages of disability-specific legal information available on an
entirely separate area of the website.
With respect to the materials Breyer reviewed prior to applying to Pacific, Paragraph 3, when
fairly viewed, does not provide clarification of her previous testimony nor does it offer any
explanation for the inconsistencies between her deposition testimony and her declaration. Rather,
Paragraph 3, to the extent that it pertains to Breyer's alleged review of Exhibits 77, 78, and 85, alls
within the category of contradictory affidavit testimony inappropriate on summary judgment
regarding her promissory estoppel claim. Therefore, the court declines to accept, for the purposes
of this Motion, that Breyer reviewed Pacific's nondiscrimination policy, the "Preparing for
PAGE 6 - OPINION AND ORDER
Postsecondary Education" page on Pacific's Website, and the "Educational Access for Students with
Disabilities: Rights and Responsibilities to Assure Educational Access for Students with
Disabilities" page on Pacific's website before deciding to apply to Pacific.
Pacific, the SPP, and the PsyD Program
Pacific and the Role ofDiversity in the SPP
Pacific is a private, postsecondary educational institution in the State of Oregon. (Corrected
Second Am. Compl., ECF No. 62 ("SAC"),
The School of Professional Psychology (the
"SPP"), which is housed within Pacific, offers several doctoral tracks for students seeking to become
psychological professionals. (Deel. of Christina Stephenson in Opp'n to Def. Pacific University's
Mot. for Summ. J., ECF No. 85 ("Stephenson Deel."), Ex. K, at 13.) Because psychologists treat
all manner of persons, "diverse representation among providers, academics, [and] researchers is
essential" to the profession. (Dep. of Christiane Brems, PhD ("Brems Dep. ")2 19 :25-20 :2.) To that
end, the SPP has a "profound commitment to fostering diversity" in its programs. (Id) The SPP
contemplates diversity to include "a very, very broad spectrum of human characteristics, everything
from religion to gender, to sexual orientation, to ethnicity to culture, to subcultures, age ... [or]
anything that makes ... human beings [unique] on an individual level." (Id 20:11-18.) "Disability"
thus is one of several characteristics incorporated into the SPP' s conception of diversity, and the SPP
considers diversity as one of its core values. (Id 19:25-20:2, 19-21.)
Pacific's commitment to diversity and inclusion is memorialized in its Non-Discrimination
The "Brems Dep." is attached as Exhibit B to the Stephenson Declaration (ECF No. 85-2)
and Exhibit 12 of the Declaration of Taylor D. Richman ("Richman Declaration") dated October 10,
2018 (ECF No. 93-7).
PAGE 7 - OPINION AND ORDER
Statement, which provides, in relevant part:
Pacific University does not discriminate on the basis of sex, physical or mental
disability, race, color, national origin, sexual orientation, age, religious preference,
or disabled or Vietnam Era status in admission and access to, or treatment in,
employment, educational programs, or activities, as required by ... section 504 of
the Rehabilitation Act of 1973 . . . [and] the Americans with Disabilities Act of
(Stephenson Deel., Ex. K, at 12.) In other words, the Non-Discrimination Statement conveys
Pacific's intention not to discriminate on a variety of bases in compliance with Section 504 and Title
III of the ADA. (Dep. of Jennifer Clark, Ph.D. dated March 23, 2018 ("2018 Clark Dep.")3
100:19-101:21.) The Non-Discrimination Statement is published on Pacific's website for review
by "potential applicants, students, employees, [and] faculty [who] can read it, see it, [and be] aware
of it." (Id 100:19-23.) The Non-Discrimination Statement is also included in various written
publications that are provided to students, such as the Academic Catalog, the SPP Student
Handbook, the Business Office Student Contract, and class syllabi. (Stephenson Deel., Ex. K, at
172; ClarkDep. 128:21-129:3.)
The PsyD Program
The SPP offers a Doctor of Psychology ("PsyD") degree. (SAC ,r 8.) Students seeking to
earn a PsyD degree must complete a five-to-aeight year program, which consists of"a core academic
cuniculum, two year-long practicum experiences (including one year at a[n SPP] run clinic and one
year at a community site), a doctoral dissertation, and a one-year internship that is accredited by the
American Psychological Association and overseen by the Association of Psychology Postdoctoral
and Internship Centers." (Deel. of Dr. Jennifer Clark, in Supp. of Def.'s Mot. for Summ. J., ECF
The "2018 Clark Dep." is attached as part of Exhibit D to the Stephenson Declaration (ECF
No. 85-4, at 5-25).
PAGE 8 - OPINION AND ORDER
No. 65 ("Clark Deel."), ,i 3.) After completing the PsyD program, students also must pass a national
licensing exam and fulfill any licensing requirements specific to the state in which he or she intends
to practice. (Id. ,i 5.)
The Essential Functions
Prior to beginning the PsyD program, admittees are provided with a copy the "Essential Job
Functions" document ("essential functions document"), which outlines the fundamental skills
required of students emolled in the SPP (the "essential functions"). (Stephenson Deel., Ex. K, at 7.)
The essential functions document conveys Pacific's expectation that all students entering the SPP
are able to "complete all [listed requirements] with or without reasonable accommodation to
complete the [PsyD] program." (2018 Clark Dep. 48:6-14.) The essential functions document is
not a f01mal element of the admissions process, but serves as an informal framework by which
Pacific gauges and assesses the skills and qualifications of applicants. (Id. 49: 13-20.)
Historically, Pacific has provided the essential functions document to newly admitted
students as a component of the admissions packet. (Id. 51:17-23.) Occasionally, however, if an
applicant references "some need for [accommodation] or [a] concern about [his or her] ability to
perform something, [Pacific will] talk with [that applicant] about the essential functions[.]" (Id.
49:21-50:1.) The essential functions document is also consulted if"issues [are] raised during the
course of interviews that suggest [Pacific] need[ s] to think about [an applicant's] ability to perform
essential functions." (Id 51:8-16.) Under such circumstances, Pacific provides the applicant in
question "with information about [its] processes and accommodations." (Id.)
As relevant here, the essential functions of the PsyD program include, but are not limited to,
a variety of physical requirements:
PAGE 9 - OPINION AND ORDER
[s]tand, sit, bend and reach while performing clinical assessments, therapy, and daily
coursework/paperwork. Ability to function in a structured environment for several
hours. Attend up to 9 hours of class per day. Participate in courses and clinical work
for several hours at a time up to 6 days per week (clinical work may occur on
Saturdays). Paiticipate in clinical work 12 months out of the year. Effectively
manage physical conditions in order to prevent impediments to appropriate services.
(Stephenson Deel., Ex. K, at 7 (emphasis added).) As well as various communication requirements:
Speak, read, and write English clearly. Document clear and legible handwritten
notes. Organize thoughts and ideas into appropriate written referenced essays,
research papers, and clinical notes, when appropriate. Enhance the dignity and image
of the psychology profession through positive public information dissemination.
(Id.) All students must sign the essential functions document to acknowledge receipt, review of its
contents, and understanding ofthe skills required. Each student's signature also serves to affirm that
he or she is capable of performing the essential functions necessary to succeed in the PsyD program.
Clinical Assessment Testing
A core component of the PsyD program is the development of practical skills, including how
to properly administer clinical assessment tests. (Id.) PsyD students must learn to correctly
administer clinical assessment tests because the administration of each test battery must be
that is, every test must be "performed the same way by every psychologist who
administers them, every time." (Id.
,r,r 11, 12.) Standardization is crucial because the results of non-
standard test administrations are invalid, and in some cases, concerns about test validity may
preclude the retesting of a patient for several months. (Id.
13.) Accordingly, the precise
administration of clinical assessment tests is an important skill students must learn in the PsyD
Students first practice administering clinical assessment tests in the Cognitive Assessment
PAGE 10 - OPINION AND ORDER
course, a mandatory pass/fail course generally taken in a student's second semester at Pacific. (Id.
The Cognitive Assessment course requires students to demonstrate "basic competence in
administering, scoring, interpreting, and communicating the results of the Wechsler Adult
Intelligence Scale (WAIS-IV) and Woodcock Johnson test batteries." (Id.
Both test batteries
contain subtests that may require the test administrator to utilize "fine motor skills" to perform such
tasks as manipulating and airnnging plastic blocks as directed by a scoring manual, slashing through
a "yes" or "no," making a mark in a paiiicular square, turning pages, or reading information in a
specific time sequence. (Id.
,r 9.) Additionally, students administering the test batteries typically do
so while holding a notepad, pencil, and stopwatch. (Id.) In the accompanying Cognitive Assessment
lab, students must demonstrate their ability to properly administer both test batteries. (Id.
Though learning to properly administer clinical assessment tests is an important facet of
Pacific's PsyD program, not all clinical psychologists personally administer the relevant test batteries
in practice. (Deel. of Dr. Wayne Adams, ECF No. 80 ("Adams Deel."), ,r 12.) Instead, practicing
psychologists sometimes employ a graduate-level psychological professional, known as a
psychometrist, to administer some or all of the relevant test batteries and related subtests. (Id.) A
psychometrist provides valid test results to the licensed professional, who then interprets the data
and integrates the findings into established patient histories. (Id.) Thus, while knowing how to
administer clinical assessment tests is helpful in interpreting the raw data gathered from various test
batteries, it is not necessarily a skill utilized by eve1y clinical psychologist in practice. (Id.)
The Internship Requirement
The internship requirement, which is generally fulfilled in the fifth year of the PsyD program,
is the final clinical experience students must pass to earn aPsyD degree. (Brems Dep. 57:6-8.) The
PAGE 11 - OPINION AND ORDER
internship requirement is mandated by the American Psychological Association ("AP A") and most
licensing boards nationwide, and consists of a full-time clinical experience outside of the SPP
campus. (Id. 57: 10-14.) All internships available in a given year are coordinated through a national
online match process. (Id. 57:15-20.) PsyD students attending Pacific must apply for and secure
internships through the online match process, and Pacific does not play an active role in placing
students at particularinternship sites. (Id. 57 :21-24; Dep. of Dr. Genevieve Arnaut ("Arnaut Dep. ")4
Each internship experience is uniquely tailored to the needs of the specific site. For example,
"[t]here may be sites that are wholly [dedicated to] assessment ... [though] most sites are a
combination of assessment and therapy or intervention, and there may be some sites that have very,
very minimal assessment and are primarily intervention and therapy." (Id. 48:2-7.) The requisite
physical and academic qualifications for a given internship site thus are dictated by the individual
site, and rest outside of Pacific's control. The independent nature of the internship requirement is
often explained in advance to PsyD students at Pacific. (Elder Dep. 130:9-13.)
Breyer's Application and Admission to Pacific
Breyer Applies to the PsyD Program
Breyer is an individual living with cerebral palsy ("CP"), a congenital condition that
substantially affects her motor skills, and causes readily observable speech and muscle impairment.
(Breyer Deel.~ 2; 2017 Breyer Dep. 56:18-57:1.) After earning bachelor's and master's degrees
from Colorado State University ("CSU"), Breyer sought to earn a PsyD degree with the hope of
The "Arnaut Dep." is attached as part of Exhibit D to the Stephenson Declaration (ECF No.
85-4, at 26-33).
PAGE 12 - OPINION AND ORDER
ultimately practicing forensic psychology. (2017 Breyer Dep. 34:25-35:1.) Breyer's search for
potential PsyD programs thus was largely guided by her interest in forensic psychology, and she
primarily considered the availability of a forensic track and the program location in deciding where
to apply. (Id. at 75:12-19.)
In December 2014, Breyer applied to the PsyD program at Pacific. 5 (Richman Deel., Ex. 1,
at 45; Breyer Deel.
Breyer did not formally disclose her disability status, but made several
references to her disability throughout her application materials. Her admissions essays, for
example, revealed that Breyer received physical therapy and speech therapy after she was diagnosed
with CP at the age of nine, and mentioned that she had been "bullied in school due to [her]
disability." (Stephenson Deel., Ex. K, at 31-3 2.) Notably, Breyer explicitly referenced her condition
in a letter to the admissions committee that attributed her low scores on the Graduate Record
Examination ("GRE") to testing difficulties related to her physical disability. (Stephenson Deel.,
Ex. K, at 49; 2017 Breyer Dep. 80:19-82:19.) The letter also disclosed that Breyer had received
accommodation when she took the GRE -
specifically, time-and-a-half to complete the exam.
(Stephenson Deel., Ex. K, at 49.)
Breyer's application was initially reviewed by a then-cmTent PsyD student and Dr. James
Lane ("Dr. Lane"), a professor in the SPP and the Director of the PsyD program's Adult Track.
(Deel. of Dr. James Lane in Supp. ofDef.'s Mot. for Summ. J., ECF No. 67 ("Lane Deel."),
3; Clark Deel. ,r 14.) Impressed with Breyer's previous academic experience, both reviewers gave
her an "outstanding" rating as to her "research potential," and Dr. Lane gave her an "above average"
Breyer also applied to the University of Denver's PsyD program, but was denied admission
on January 12, 2015. (Oct. Breyer Dep. 92: 7-14; Richman Deel., Ex. 1, at 55.)
PAGE 13 - OPINION AND ORDER
rating with respect to her "clinical potential." (Stephenson Deel., Ex. K, at 69-70; Dep. of James
Lane, PhD ("Lane Dep.")6 40:9-13; 41:10-12.)
Dr. Lane and the student reviewer both
recommended that Breyer should be retained in the admissions pool, interviewed in person, and
"strongly consider[ed]" for acceptance into the PsyD program. (Stephenson Deel., Ex. K, at 69-70.)
Breyer Attends Pacific's Interview Day
Breyer was subsequently invited to attend "Interview Day," an event held at the SPP to
provide applicants with an opportunity to learn more about the PsyD program and to engage with
current PsyD faculty and students. (Clark. Deel.
15.) In the weeks preceding Interview Day,
Breyer contacted Piper Menke ("Menke"), the Assistant Director of Graduate and Professional
Admissions, to request an accommodation for the event. (Richman Deel., Ex. 1, at 54.) Breyer
explained that "due to [her] disability," she might require additional time to finish a writing exercise
assigned and completed during Interview Day. (Id) Menke responded immediately, and readily
granted Breyer's request for accommodation. (Id at 53.)
On February 27, 2015, Breyer attended Interview Day at Pacific's campus in Hillsboro,
Oregon. (Breyer Deel.~ 4.) During her visit, Breyer attended informational sessions about the SPP
and sat for formal interviews conducted by two PsyD students and one faculty member. (Id; 2017
Breyer Dep. 85:13-17; Lane Dep. 43:18-22; Stephenson Deel., Ex. K, at 66-68.) Breyer's
interviewers evaluated the substance ofher interview using Pacific's interview feedback fmms. (See
Stephenson Deel., Ex. K, at 66-68.) Both student interviewers gave Breyer "above average,"
"average," and "outstanding" ratings with respect to her "fit with the program," "relevant
The "Lane Dep." is filed as Exhibit A of the Stephenson Declaration (ECF No. 85-1).
PAGE 14-OPINION AND ORDER
(inter)personal characteristics," and "diversity contributions and potential." (Stephenson Deel., Ex.
K, at 66--67.) Based on their evaluations, both students recommended Breyer be retained in the
admissions pool and "strongly consider[ ed for] acceptance" into the PsyD program. (Id.) Breyer' s
faculty interviewer, Dr. Lane, also evaluated Breyer favorably, giving her "average" and "above
average" ratings in her "understanding of [a] professional psychologist's role" and "diversity
contributions and potential." (Lane Deel.
,r 4; Stephenson Deel., Ex. K, at 68.)
Dr. Lane, however, struggled to rate Breyer' s "clinical potential," an evaluation largely based
on whether the applicant "appears capable of forming and maintaining relationships." (Lane Dep.
50: 5-8.) In his deposition testimony, Dr. Lane explained that rating an applicant's clinical potential
requires, to some degree, a subjective assessment of various interpersonal characteristics such as
"tone of voice, the way the person speaks, eye contact, [and] facial expressions." (Id. 50:11-15.)
While interviewing Breyer, Dr. Lane observed that some of those characteristics "were not under her
voluntary control," making it difficult to "judge the emotional content of what she was conveying."
(Lane Dep. 50:11-23.) As a result, Dr. Lane did not believe he could fairly or accurately assess
Breyer's clinical potential during the short twenty-minute interview, and left that section of the
interview feedback form blank. (LaneDep. 49:24-50:14; 51 :7-21; Stephenson Deel., Ex. K, at 68.)
He noted at the bottom of the feedback form, however, that Breyer's candidacy needed to be
discussed in detail "with advice and counsel" from his colleagues. (Stephenson Deel. Ex. K, at 68;
Lane Dep. 51 :25-52: 1O; Lane Deel.
Dr. Lane did not make a recommendation as to whether
Breyer should be admitted to the PsyD program.
Faculty and Staff Discuss Dr. Lane's Concerns
Dr. Lane, having observed the "presence and degree of [Breyer's] disability," developed
PAGE 15 -OPINION AND ORDER
concerns about her ability to complete the PsyD program. (Lane Dep. 50:24-51 :21; 53: 15-24.) Dr.
Lane shared his observations with the admissions committee and the Dean ofthe SPP, Dr. Christiane
Brems ("Dr. Brems"), expressing apprehension about Breyer' s "capacity to carry out some of the
physical and communication skills" required of students in the SPP. (Deel. of Dr. Christiane Brems
in Supp. of Def.'s Mot. for Summ. J., ECF No. 66 ("Brems Deel."),
,r,r 2, 4; Dep. of Christiane
Brems, PhD ("Brems Dep.") 7 41:16-42:10.) Specifically, Dr. Lane shared his concerns about "how
potential clients might respond" to Breyer, and whether the "[s]peed ... and articulateness of her
communication" would make it difficult for her to complete intake assessments in the SPP clinic in
a timely manner orto screen prospective clients over the phone. (Id. at 55: 17-25, 56:8-10.) In light
of the concerns raised by Dr. Lane, Dr. Brems determined it was necessary to "explore how [Pacific]
would need to support [Breyer] ... to help her be successful" if admitted to the PsyD program.
(Brems Dep. 43:1-10.)
Soon thereafter, Dr. Brems consulted Dr. Ann Barr-Gillespie ("Dr. Barr-Gillespie"), Pacific's
Vice Provost and Executive Dean of the College of Health Professionals, and Dr. Mark Ankeny
("Dr. Ankeny"), Pacific's Vice President of Student Affairs, about Breyer' s application. (Stephenson
Deel., Ex. N.) Specifically, Dr. Brems explained that an SPP applicant had "functional impairments
that call in [to] question whether she can perform all essential functions listed for the PsyD program
without significant accommodation." (Id. at 4.) Dr. Brems sought clarification of Pacific's legal
obligations under such circumstances, and expressed concern that the SPP did not have the resources
necessary "to provide all the accommodations . . . this student would [potentially] require" if
The "Brems Dep." is attached as Exhibit B to the Stephenson Declaration (ECF No. 85-2)
and as Exhibit 12 to the Oct. Richman Declaration (ECF No. 93-7).
PAGE 16 - OPINION AND ORDER
admitted. (ld.) The record indicates that SPP administrators shared similar concerns as to whether
the SPP or the wider university administration would bear the financial responsibility of providing
necessary accommodations once Breyer was admitted. (Stephenson Deel., Ex. K, at 272.)
On March 11, 2015, members of the admissions committee, Pacific and SPP administrators,
the Director of Pacific's Learning Support Services ("LSS"), and the SPP's recruiting specialist
(collectively, "the group"), attended a meeting to discuss Dr. Lane's concerns about Breyer' s ability
to perform the essential functions, particularly with respect to clear communication and the
administration of clinical assessments. (Brems Deel. ,r 5; Brems Dep. 44:20-45:4, 46:17-25; Dep.
Of Katherine Elder, PhD ("Elder Dep. ") 8 73: 19-74: 13.) Unsure Breyer "knew the extent to which
verbal communication and fine motor skills would be part of the required training," the group
dete1mined Breyer should be provided with information about the essential functions required of
students in the PsyD program. (Elder Dep. 84:10-17; Dep. of Kirn Garrett ("Ga1Tet Dep.") 9
49: 16-25.) To that end, Dr. Katherine Elder ("Dr. Elder"), a professor in the SPP, and Kirn Garrett
("GaITett"), the Director ofLSS, were tasked with calling Breyer to discuss the essential functions.
The Group's decision to have a follow-up conversation with Breyer to discuss the essential
functions generally deviated from Pacific's standard admissions practices. Historically, the essential
functions document has been distributed via the admissions packet, and Pacific has not otherwise
shared or discussed the essential functions with prospective students prior to admission. (Dep. Of
The "Elder Dep." is attached as part of Exhibit 2 to the July Richman Declaration (ECF
No. 64-2, at 1-12), as Exhibit F to the Stephenson Declaration (ECF No. 85-6), and as Exhibit 8 to
the Oct. Richman Declaration (ECF No. 93-3).
The "Garrett Dep." is attached as part of Exhibit 3 to the July Richman Declaration (ECF
No. 64-3, at 1-7) and as Exhibit G to the Stephenson Declaration (ECF No. 85-7).
PAGE 17 - OPINION AND ORDER
Jennifer Clark, PhD dated Mar. 23, 2018 ("2018 Clark Dep.") 10 51:17-52:1; 59:1-17.) None of
Pacific's policies or procedures, however, explicitly prohibited the timing or content of the
conversation proposed. (Id. 55: 6-10, 57: 3-5 9: 17.) Rather, when interaction with an applicant raises
questions about his or her ability to perform the essential functions, the steps taken to determine
whether the applicant has the requisite functional ability to complete the PsyD program "can take
whatever form" is most helpful under the circumstances. (Id. 58:1-25.)
The March 12, 2015 Phone Call
On March 12, 2015, Dr. Elder emailed Breyer and requested to "talk by phone as a follow-up
to [her] interview ... at Pacific." (Declaration of Taylor D. Richman in Supp. of Def.'s Mot. for
Summ. J. dated July 20, 2018, ECF No. 64 ("July Richman Deel."), Ex. 1, at 57.) Dr. Elder
explained that the purpose of the call was to have a detailed discussion about the essential functions
required of graduate students in the SPP, and specified that she and Garrett would be on the call.
(Id.) Breyer agreed.
Breyer, Dr. Elder, and Garrett spoke by phone later that day. (2017 Breyer Dep. 94:3-22;
Stephenson Deel., Ex. K, at 72-74.) Notes taken by Dr. Elder during the phone call confom the
essential functions were discussed, including physical requirements that implicated the use of "fine
motor skills" in the PsyD program and beyond. (Stephenson Deel., Ex. K, at 72.) Dr. Elder
specified in her deposition testimony that she sought to make Breyer "very aware of what types of
motor skills would be involved in not only [the PsyD] practica, but future practica outside of
Pacific," especially with regard to clinical testing. (Elder Dep. 108 :4-16.) Dr. Elder also explained
The "Mar. Clark Dep." is attached as part of Exhibit D to the Stephenson Declaration
(ECF No. 85-4, at 5-25).
PAGE 18 - OPINION AND ORDER
the importance of clear communication, and its role in clinical psychology. (Stephenson Deel., Ex.
K, at 72.) Lastly, Dr. Elder reviewed the internship requirement, of which Breyer knew "little" or
just the "basics." (Id. at 72-73.) Dr. Elder sought to clarify that internships are completed outside
of the PsyD program, thus divesting Pacific of control over student placement and the specific
qualifications, physical or otherwise, required for any given internship experience. (Elder Dep.
125:15-126:8.) Toward the end of the call, Garrett attempted to decipher what accommodations
Breyer might need if she was admitted to the PsyD program, asking whether Breyer had previously
utilized a personal assistant and whether she had been formally evaluated by a doctor to dete1mine
what accommodations were necessary in an academic environment. (Stephenson Deel., Ex. K, at
73; Ganett Dep. 61 :4-14.)
Dr. Eider's notes reveal that Breyer was receptive to the substance of the phone call. Though
she acknowledged that certain physical requirements could pose somewhat of a challenge, she
otherwise expressed confidence in her abilities. (Stephenson Deel., Ex. K, at 72.) Breyer explained
that clear communication, both in person and over the phone, did not present a significant problem,
and stressed that she felt comfortable interacting witp children and adults alike. (Id.) Further, Breyer
opined that interactions with children could result in "teachable moments." (Id.)
Breyer' s recollection of the phone call, however, differed from that of Elder and Garrett.
During her deposition, Breyer testified that the phone call was not about the essential functions of
the PsyD program, but "was more of an interrogation of whether or not [she] could do certain
activities." (2017 Breyer Dep. 94:23-95:3.) For example, Breyer could not recall discussing the
"physical requirements" of the PsyD program, alleging Dr. Elder merely asked if she could
"reanange blocks." (Id. 96:7-14.) Breyer also did not remember discussing the essential functions
PAGE 19-OPINION AND ORDER
of speaking clearly with clients and communicating with clients over the phone, recalling only that
Dr. Elder had asked "something to the effect like, 'How do you expect the clients to understand you
considering your physical disability?'" (Id. 96:18-97:3.) Breyer likewise did not remember Dr.
Elder identifying the internship requirement as an essential function, or discussing the process of
student placement. Rather, she recalled only that Dr. Elder had questioned how she would obtain
an internship in light of her disability. (Id. 97:6-23.) Though Breyer insists her recollection of the
phone call is accurate, she acknowledged in her deposition testimony that she was paraphrasing the
conversation because she could not remember the specific words or phrases used by Dr. Elder. (Id.
97:4-5, 10-12, 24-25.)
Breyer is Admitted to the PsyD Program
Immediately after the March 12, 2015 phone call, Dr. Elder emailed Breyer a copy of the
essential functions document, as well as two clinical testing videos to help illustrate the requisite
motor skills involved in administering clinical assessment tests. (Stephenson Deel., Ex. K, at 81.)
Breyer responded, explaining that she had discussed the phone call with her CSU thesis advisor, who
had expressed doubts that the administration of particular assessment tests was an essential function
of the PsyD program. (Id. at 80-81.) She also noted that they discussed what she believed were Dr.
Eider's concerns: fine motor skills related to setting up and administering specific clinical
assessment tests, how children and adults respond to her disability, how she handles people who
cannot understand her on the phone, and how she would obtain an internship with her disability. (Id.
at 80.) Citing her demonstrated ability to "thrive and flourish under many different academic and
professional settings," Breyer confirmed she had reviewed the essential functions and felt confident
she could "maintain those standards with or without accommodation afforded to [her] by law." (Id.
PAGE 20 - OPINION AND ORDER
Shortly thereafter, Dr. Elder emailed a summary of the March 12 phone call to the group.
Dr. Elder advocated for Breyer's admission to the PsyD program, reasoning that "all students are
taking a chance  they will be able to meet the challenges of our graduate program, and as long as
she signs the essential functions, it would be hard for us to assume we could predict success/failure
better in this case than in others." (Id. at 78.) She acknowledged, however, that the "complexity of
[Breyer' s] case" might require the admission decision to rest with more than one person. (Id. at 77.)
Several of Dr. Eider's colleagues agreed with her overall assessment, and Pacific officially offered
Breyer admission to the SPP in the Adult Psychology Track on March 19, 2015. (Id. 76-79, 83;
SAC if 23.)
Dr. Genevieve Arnaut Seeks Guidance About Accommodating Breyer
On March 20, 2015, Dr. Genevieve Arnaut ("Dr. Arnaut"), the SPP's Director of Clinical
Training, contacted Dr. Alette Cobble-Temple ("Dr. Cobble-Temple"), a faculty member at the John
F. Kennedy University College of Psychology who lives with CP. (Stephenson Deel., Ex. K, at 182;
Deel. of Dr. Allette Cobble-Temple, ECF No. 82 ("Cobble-Temple Deel."),
,r,r 1, 7.)
In light of
Breyer' s admission to the SPP, Dr. Arnaut requested "any input, ideas, or resources" regarding the
types of accommodations that might help a student with CP succeed in a PsyD program. (CobbleTemple Deel., Ex. 100, at 2-3.) Dr. Cobble-Temple suggested a variety of measures-including
different methods of accommodating the administration of clinical assessment tests -that could be
beneficial depending on the severity and circumstances of the student's CP. (Cobble-Temple Deel.,
Ex. 100, at 1.) Dr. Cobble-Temple expressed her willingness to "provide further guidance" if
needed, but she received no further contact from Dr. Arnaut or anyone else at Pacific. (CobblePAGE 21-OPINION AND ORDER
Temple Deel. ,r 8.)
Breyer Accepts Pacific's Offer ofAdmission
Breyer was "very proud" to be accepted into a competitive program, but "had mixed feelings"
about her acceptance to Pacific due to the March 12 phone call. (2017 Breyer Dep. 104:20-2015: 8.)
She thus considered whether to accept admission by reviewing Pacific's website and consulting
friends and colleagues. (Id. 105:9-107:24.) Based on Pacific's website and her experience at
interview day, Breyer concluded that Pacific was "very committed to diversity." (Id. at 105:9-25.)
On May 12, 2015, Breyer contacted Dr. Elder with her decision to accept admission to the
PsyD program. Id. Breyer explained that the decision had required significant thought due to the
"how the issue of diversity was handled" during the admissions process, but that she had since
determined that pursuing her professional goals was more important than her concerns about the
March 12 phone call. (Id.) She nevertheless requested an in-person discussion with Dr. Elder about
the phone call after she atTived on campus in August 2015. (Id.) Breyer also stated that she had
"already [identified] three potential sites for internships" on recommendations from her neurologists
in Colorado, and inquired as to the steps necessary "to get those places ready to go for an
Two days later, Breyer emailed Dr. Tamara Tasker ("Dr. Tasker"), the Director of
Academics, seeking to substitute "life experience" in lieu of a required human diversity class.
(Stephenson Deel., Ex. K, at 10-11, 173.) She explained that she had "made it [her] life's mission
to work with and educate [herself] on human diversity issues," and that "experiencing how the
[PsyD] program handled the issues of diversity in regards to [her] needs" had caused her to "question
[her] use oftime in [the human diversity] class." (Id.) Specifically, Breyer concluded that she would
PAGE 22 - OPINION AND ORDER
be uncomfortable "taking this class from Pacific knowing that faculty members asked [her] insulting
and illegal questions" during the phone call on March 12. (Id.) In response to Breyer' s complaints,
Dr. Elder, Dr. Tasker, Dr. Lane, and Dr. Brems met to discuss the issues identified, and determined
it was necessary to meet with Breyer as soon as possible after the fall term began. (Elder Dep.
Breyer' s Attendance at Pacific
Breyer Requests and is Granted Accommodations
Breyer relocated to Hillsboro, Oregon with her husband, where she began attending classes
at Pacific's professional campus on August 31, 2015. (Oct. Breyer Dep. 110: 19-111 :2; SAC ,r 35.)
Soon after classes commenced, Breyer approached two of her professors to request accommodations
for her disability. (Deposition of Rebekah Breyer dated Mar. 7, 2018 ("2018 Breyer Dep.") 11
150:5-24, 152:9-25.) Both professors explained that Pacific policy required coordination and
approval of all accommodations through LSS, and directed Breyer to contact LSS to make a formal
request. (Clark Deel.
,r 25; Dep. of Dr. Genevieve Arnaut dated April 6, 2018 ("Apr.
Dep.") 12 73:20-23; Mar. Breyer Dep. 150:18-153:18.)
On September 8, 2015, Breyer requested a meeting with Garrett to discuss disability services.
The meeting occmTed two days later on September 10, 2015. (July Richman Deel., Ex. 3, at 35.)
Breyer protested the required use of formal channels to arrange her accommodations, explaining that
The "Mar. Breyer Dep." is attached as part of Exhibit 1 to the July Richman Declaration
(ECF No. 64-1, at 17-44), as part of Exhibit C of the Stephenson Declaration (ECF No. 85-3, at
14-36), and as part of Exhibit 10 to the October Richman Declaration (ECF No. 93-5, at 9-11).
The "Apr. 6 Arnaut Dep." is attached as Exhibit H to the Stephenson Declaration (ECF
No.85-8) and as Exhibit 11 to the October Richman Declaration (ECF No. 93-6).
PAGE 23 - OPINION AND ORDER
other educational institutions had allowed her to simply take additional time on exams as needed.
(Id at 31.) Gairett explained the necessity of coordinating all accommodations through LSS, which
Breyer appeared to understand. (Id) They then discussed various accommodations Breyer might
need, including an assigned note-taker, time-and-a-half on exams, the ability to secure an extension
on assignments if necessaiy, and reserved parking adjacent to the building where she attended
classes. (Id at 28, 31.) Garrett later emailed Breyer to confirm that the accommodations discussed
were sufficient to meet her needs. (Id at 28.) Breyer requested double time instead oftime-and-ahalf to complete exams, but otherwise confirmed the proposed accommodations "look[ed] good."
(Id. at 26.) Garrett thereafter approved all accommodations requested, including double time on
exams. (Id. at 24-25.)
Breyer Requests and Attends a Meeting to Discuss the March 12, 2015 Phone Call
Soon after the start of classes, Breyer also requested a meeting with Dr. Elder to discuss the
March 12 phone call, which she felt had been "insensitive," "humiliating," "ableist," and "focused
solely on [her] disability." (2017 Breyer Dep. 113:11-115:11.) She subsequently met with Dr.
Elder, Dr. Tasker, and Dr. Brems on September 14, 2015, and described the ways in which the
March 12 phone call had been problematic, going so far as to opine that several questions asked of
her had been illegal. (2017 Breyer Dep. 111 :19-112:3, 112:22-113:10; Elder Dep. 175:1-13,
17 5 :22-176: 13; Breyer Deel. ~ 7.) Breyer explained that the wording of specific questions had been
insensitive, and provided instruction as to how each question could have been asked in a more
sensitive form. (Id 117 :21-118: 1.) She stressed that she did not take issue with discussing her
disability, but simply wished to do so in "a more sensitive" and "educated" manner. (Id. 118: 15-25.)
Drs. Elder, Tasker, and Brems "seemed to be open and ... mindful about what [she] was saying,"
PAGE 24 - OPINION AND ORDER
but allegedly admitted to having no training or knowledge concerning the ADA. (Elder Dep.
177:23-178:8; Oct. Breyer Dep. 119:4-8; Breyer Dep ,r 7.) After the meeting, Dr. Brems, in her
capacity as the Dean of the SPP, took no further action to investigate the substance of the March 12
phone call. (Brems Dep. 79:8-11.)
Breyer Meets with Dr. Tram
Breyer' s first-semester coursework included Basic Clinical Skills, a class and accompanying
lab which teaches students practical skills such as empathy, listening, proper non-verbal behavior,
and how to deal with difficult clients. (Deel. of Dr. Jane Tram in Supp. of Def.' s Mot. for Summ.
J., ECF No. 68 ("Tram Deel."), ,r,r 3,4.) The class is primarily centered on counselor-client roleplay
and student feedback, and the quality of the feedback given by each student is factored into his or
her final grade. (Id.)
On September 17, 2015, Dr. Tram, the Basic Clinical Skills professor, asked to meet with
Breyer after other students expressed difficulty evaluating her performance during the roleplay
sessions. (July Richman Deel., Ex. 1, at 67-68; Tram Deel. ,r 5.) The students explained that they
ordinarily focused their feedback on an individual's "clarity of speech or extraneous movements,"
but that such feedback w,as not helpful in Breyer's case because she lacked control over certain
verbal and non-verbal cues. (Id.) Several ofBreyer's classmates thus sought guidance as to how
they could provide her with higher quality feedback during future sessions. (Id.) Because Dr. Tram
"believed it was important to address these concerns in a way that would result in a positive learning
experience" for all involved, she waited to speak with Breyer before providing any guidance on the
On September 21, 2015, Breyer met with Dr. Tram, who relayed the concerns reported by
PAGE 25 - OPINION AND ORDER
Breyer's classmates. Breyer alleges Dr. Tram asked her to speak with the class about her disability
because she did not want other students "to be afraid of giving [her] real critical critique during [the]
mock therapy sessions," and thought it would be helpful for the other students to "know what is
normal about [her] and what is not normal about [her]." (2018 Breyer Dep. 142:14-143:4.) Breyer
admittedly could not recall, however, if those were the exact words or phrases used by Dr. Tram.
(Id. 142: 3-7.) Dr. Tram maintains that she simply asked Breyer if she would like to address the issue
with the class herself rather than having the substance of their conversation communicated secondhand. (Id.
The next day, Breyer sent an email to Dr. Tram which read, in relevant part:
After careful consideration of your suggestion that I address my disability in class
and on the advi[c]e ofmy legal [counsel], I am not willing to talk to the class on
Thursday. If you feel that it is appropriate to reiterate that nobody should
discriminate against their classmates generally and when giving feedback on the basis
of sex, disability, race, color, national origin, sexual orientation, age, religious
preference, disabled veteran or Vietnam era status please do so.
(Richman Deel., Ex. 1, at 69; Tram Deel. ~ 9.) Dr. Tram responded the same day, emphasizing that
her intention had been only to "enhance the quality of the feedback" provided by the other students.
Breyer Requests and Attends a Meeting with Dr. Clark
Shortly after the meeting with Dr. Tram, Breyer requested a meeting with Dr. Jennifer Clark,
the Director of the PsyD program, to discuss research ideas for a class assignment. (Stephenson
Deel., Ex. K, at 182; 2018 Breyer Dep. 198: 5-24.) During the meeting, Breyer raised concerns about
her interactions with Dr. Tram, and stated that her performance had never been questioned solely on
the basis of her disability during her previous academic career. (Id. 199:16-200:10, 203:9-15.)
PAGE 26 - OPINION AND ORDER
Breyer recounted her discussion with Dr. Tram regarding student feedback, and complained that Dr.
Tram had since suggested she provide clients with a note card explaining her disability and affirming
her competence as a psychologist before speaking with them. (Id 145:2-146:13.) Notes taken by
Dr. Clark during the meeting indicate Breyer felt Dr. Tram's actions "c[a]me from a good place,"
but that she thought some aspects of those actions were likely illegal. (Stephenson Deel., Ex. K, at
103; Clark Dep. 95: 10-96 :20.) Breyer again raised her concerns about the March 12 phone call, and
asked Dr. Clark if she needed to provide her professors with a copy of her resume to prove she was
capableofbecomingapsychologist. (2018BreyerDep.167:10-20, 168:14-24.) Dr. Clark appeared
to be "genuinely concerned about the treatment [Breyer] was receiving by her faculty," and assured
her such measures were unnecessary. (Id 167:21-25.)
That same day, Dr. Clark asked Breyer to share her concerns with Dr. Tasker. Breyer
obliged, presenting Drs. Clark and Tasker with a list of issues she had compiled regarding her overall
experience with Pacific and its faculty. (Id. 168:14-24; Stephenson Deel., Ex. K, at 147.) Both Dr.
Clark and Dr. Tasker were receptive to Breyer's concerns, and reviewed the list with her point-bypoint. (Id 210:20-211 :3.) By the end of the meeting, Dr. Tasker and Dr. Clark both agreed "they
should work more on ADA laws," and asked Breyer if she would like them to address her concerns
withDr. Tram. (2018BreyerDep.170:3-12.) Breyerdeclined,directingDr. Clark and Dr. Tasker
not to speak with Dr. Tram because she "did not want to get her into trouble." (Id 170:6-8.)
Breyer Meets with Drs. Arnaut and Li
During a class discussion in early October 2015, Breyer commented that Pacific had not been
supportive of her needs in relation to her disability. (2018 Breyer Dep. 155:17-21, 213:20-22; Apr.
6 Arnaut Dep. 111 :8-14.) The comment troubled Dr. Arnaut, who was leading the discussion, and
PAGE 27 - OPINION AND ORDER
she requested that Breyer meet with her and the SPP Director of Human Diversity, Dr. Susan Li
("Dr. Li"), to discuss her concerns. (2018 Breyer Dep. 213:23-214:4.)
On October 12, 2015, Breyer met with Dr. ArnautandDr. Li. (Id. 155:17-24, 214:1-216:12;
July Richman Deel., Ex. 1, at 73-80.) Several of Breyer's concerns were discussed during the
meeting, including the March 12 phone call, the incident with Dr. Tram, and Breyer's opposition to
the structured approval of accommodations throughLSS. (Apr. 6 ArnautDep. 120:25-121 :5; 2018
Breyer Dep. 216:7-12; July Richman Deel., Ex. 1, at 71-80.) Breyer also recounted the substance
of her previous meeting with Dr. Clark, and explained that she had declined Dr. Clark's offer to
speak with Dr. Tram because she wished to handle issues with particular faculty members on her
own. (2018 Breyer Dep. 217:11-14.)
Instead of focusing on her concerns, Breyer claims Dr. Li took the opportunity to raise
concerns about ce1iain requirements of the PsyD program, particularly the clinical assessment
courses, practicums, and internships. (Id. 220:22-221 :6.) Dr Li explained, for example, that
"standardized testing may require timed administration and manipulation ofmaterials, and [that] any
nonstandard administration might result in unreliable and invalid test results." (Richman Deel., Ex.
1, at 77.) Dr. Li also asked whether Breyer was "able to hold a stopwatch, a clipboard, and a pen all
at the same time" as required by certain test batteries. (2018 Breyer Dep .. 222:9-16.) Drs. Li and
Arnaut noted that students did not have to conduct clinical assessment testing until the Cognitive
Assessment course began the following semester, but suggested Breyer review videos of valid test
administrations to learn more about the testing process. (Id. 222: 17-20, 223: 1-12.) Dr. Li also
reviewed the internship requirement, stressing Pacific's lack of control over student placements and
any physical dexterity and speed of movement requirements that might be in place at various
PAGE 28 - OPINION AND ORDER
internship and practicum sites. (Id. 221:10-13; Richman Deel., Ex. 1, at 77-78.) They concluded
the meeting with a plan to have Dr. Clark serve as Breyer's point of contact regarding the issues
raised, and any other issues that might arise in the future. (2018 Breyer Dep. 222:22-25; Richman
Deel., Ex. 1, at 78.)
Breyer later sent an email alleging that the real purpose of the meeting was to question her
abilities, not to discuss her experience at Pacific. (July Richman Deel., Ex. 1, at 78-80; 2018 Breyer
Dep. 182:23-183:17.) Breyer alleged Dr. Li had immediately asked whether the PsyD program was
the right fit for her, and that during the conversation that followed, neither Dr. Li nor Dr. Arnaut
expressly asked about her concerns. (2018 Breyer Dep. 214:5-216:9; July Richman Deel., Ex. 1,
at 71; Dep. of Susan Li, PhD ("Li Dep.") 13 81 :11-82:3.) Breyer fmiher alleged that Dr. Li had asked
what other universities had to say about her disability, and had stated that she would not feel
comf01iable recommending Breyer to practicum sites because she did not know if Breyer could
perform the work required. (July Richman Deel., Ex. 1, at 72; Li Dep: 67:21-68:19, 73:15-75:2.)
Breyer concluded the email by "encourag[ing] the program to look at the ADA laws and take note
of how many laws the program has broken since March." (July Richman Deel., Ex. 1, at 73.)
In response to Breyer's allegations, Dr. Brems provided her with an overview of Pacific's
formal student grievance procedure. (Id. at 81.) Dr. Brems noted that "a disagreement about how
matters are handled does not necessarily rise to the level of discrimination," but neve1iheless urged
Breyer to submit her concerns regarding ADA compliance in writing to Will Perkins, the Dean of
Students ("Dean Perkins"), which would trigger a formal investigation. (Id.) Breyer never contacted
The "Li Dep." is attached as Exhibit 4 to the July Richman Declaration (ECF No. 64-4)
and as Exhibit J of the Stephenson Declaration (ECF No. 85-10).
PAGE 29 - OPINION AND ORDER
Dean Perkins or otherwise sought to engage Pacific's formal process for reporting discriminatory
conduct. (2018 Breyer Dep. 219:25-220:12.)
Breyer Requests and Attends a Meeting with Drs. Clark and Arnaut, Who Create a
Formal Action Plan
Three days later, on October 15, 2015, Breyer sent an email to Dr. Clark that explained, in
I am having serious doubts about my abilities right now due to all the professors[']
concerns. I am wondering ifl should continue with the program or not. I want to be
open to these concerns and not be defensive any[ more]. I want to be able to talk to
you in person and have an open and honest discussion about my abilities. It would
be good to have Dr. Arnaut there at the meeting because she knows what the
practicum sites require and are looking for in people. You are the people I trust right
now to provide me with an objective insight into these matters ....
I want to get this resolved soon because it is greatly impacting my abilities to study
for midterms. I think Dr. Li did make a good point when she suggested I have a
clearer understanding of the work of a psychologist before I do waste any more time
or money and maybe look into other avenues.
(Richman Deel., Ex. 1, at 98-99.)
On October 19, 2015, Breyer met with Dr Clark and Dr. Arnaut to discuss "all of the
remaining program requirements and to assess if completing [the PsyD] program [was] realistic for
her." (Stephenson Deel., Ex. K, at 91.) During the meeting, Drs. Clark and Arnaut explained the
various requirements of the PsyD program, particularly the internship requirement and "the
challenges [Breyer] may face securing placement in an already competitive field." (Id.) They also
discussed the role of clinical assessment testing in Breyer' s training, the kinds of accommodations
that might be necessary for Breyer to complete her first assessment course, and the SPP's need to
evaluate whether using nonstandard procedures in the administration of standardized assessment
tests would impact the validity of the results. (Id.) Though unsure, Breyer speculated that she might
PAGE 30 - OPINION AND ORDER
need an accommodation to complete the Cognitive Assessment course.
(2018 Breyer Dep.
They also discussed Breyer' s career goals, particularly her desire to advocate for clients in
the court system as a forensic psychologist. Drs. Clark and Arnaut clarified that the roles of a
forensic psychologist and an advocate in the criminal justice system are separate and distinct, and
that being an advocate does not require a PsyD or training in forensic psychology. (2018 Breyer
Dep. 228:14-229:4; Dep. of Jennifer Clark, PhD dated Nov. 14, 2017 ("2017 Clark Dep.") 14
47:7-48:3; Stephenson Deel., Ex. K, at 91.) Further, they explained that forensic placements in state
hospitals or correctional institutions tend to have more rigorous mobility requirements due to
heightened safety concerns, and that Breyer' s disability could "limit the feasibility of acceptance at
these placements." (Stephenson Deel., Ex. K, at 91.) Dr. Arnaut also opined "that forensic
assessment as a specialty area would likely not be amendable to non-standardized administration of
tests due to the purpose of the assessments being court related." (Id.)
By the end of the meeting, Dr. Arnaut, Dr. Clark, and Breyer discussed and agreed to the
following action plan to determine appropriate accommodations for the Cognitive Assessment
Dr. Clark is going to seek out a video of test administration ofIQ and other measures
so that Rebekah can gain a greater understanding of the task.
Dr. Clark will gather information on accommodations utilized for prior students in
the assessment course.
Dr. Arnaut will explore literature and other schools' policies about the scope of
acceptable accommodations for standard administration of measures.
The "2017 Clark Dep." is attached as Exhibit E to the Stephenson Declaration (ECF No.
85-5) and Exhibit 9 to the October Richman Declaration (ECF No. 93-4).
PAGE 31 - OPINION AND ORDER
Drs. Clark and Arnaut will initiate discussion with faculty about SPP's view on
allowable testing accommodations (e.g., does student have to administer all subtests
(Id.; 2018 BreyerDep. 231:16-232:18.)
Following the meeting on October 19, 2015, Dr. Clark "believed it was important for the
PsyD program to deeply consider whether it was essential to the learning objectives of the
assessment course for students to actually administer" all subtests associated with a particular
assessment test, and began consulting other faculty members regarding possible alternatives. (Clark
Deel. ,r,r 18, 19.) Because determining whether suitable alternatives exist was "a complex cunicular
decision" requiring time and consideration, SPP faculty believed it was imperative to discuss and
determine appropriate accommodations before Breyer began the Cognitive Assessment course the
following semester. (Id. ,I 21.) Breyer, however, had been discouraged, and felt that her meeting
with Drs. c;lark and Arnaut had provided "more obstacles and doubt." (Breyer Dep.
Consequently, Breyer suspected the prolonged and involved process of dete1mining the feasibility
and appropriateness of various accommodations was intended to discourage her from continuing the
PsyD program. (Id.)
Breyer Requests that Pacific Provide an Assistant
On October 24, 2015, Breyer contacted Dr. Clark and requested that she be provided with
an assistant "trained in psychological assessments to help [her] get through classes and practicum
sites[.]" (Richman Deel., Ex. 1, at 104.) Breyer had read that professional psychologists often hire
assistants to do a variety of tasks, including administering clinical assessment tests, and explained
that she similarly intended to hire an assistant once in practice. (Id.) Accordingly, Breyer indicated
she prefened to have an assistant over any other accommodation that might be provided, and
PAGE 32 - OPINION AND ORDER
reasoned that having such "a person to help people with different needs would be a good asset to the
program for now and in the future." (Id.) Breyer stated they would otherwise need "to meet for an
exit plan" if an assistant could not be provided, citing the negative impact the situation was having
on her studies. (Id.)
On October 25, 2015, Dr. Clark responded, in relevant part:
Yes, psychologists in practice often do use psychometricians to administer tests -we
discussed this when we last spoke. The issues that we, as a faculty, need to discuss
and explore are those outlined in [the follow-up plan discussed at the October 19
Once we determine what accommodations would be allowable and acceptable for
student training, we can then explore how to support you in your academic and
practicum training. It is my plan to address/discuss these issues on Monday with
(Richman Deel., Ex. 1, at 103.) In conclusion, Dr. Clark stated she would be available if Breyer
wished to check in during the decision-making process. (Id.)
Breyer responded the same day, and insisted that "having a person to help administer the tests
would cut out all the other steps" outlined in the previous action plan. (Id. at 102-03.) In response,
Dr. Clark reiterated that SPP faculty needed to assess "what accommodations we have used in the
past and what role you would need to play in [test] administration to pass the course." (Id. at 102.)
Breyer Meets with Dr. Clark and Withdraws from Pacific
On October 26, 2015, Breyer again met with Dr. Clark. (2018 Breyer Dep. 238:16-239:5.)
Dr. Clark informed Breyer that she had consulted LSS about her request for an assistant, which had
determined the use of an assistant was an allowable accommodation.
Garrett, however, had
determined that an assistant constituted a "personal service" for which Breyer would be financially
responsible. (Id. 148: 15-149:5, 239:6-10; 2017 ClarkDep. 64:1-6, 74:24-75:12; Stephenson Deel.,
PAGE 33 - OPINION AND ORDER
Ex. K, at 101.) Dr. Clark also addressed Breyer's stated career goal of practicing forensic
psychology, clarifying that though she could complete some forensic course work, the PsyD program
could not guarantee "the support necessary" for Breyer to complete the forensic training
requirements because she had not been admitted to the Forensic Track.
(2018 Breyer Dep.
239:11-22; Stephenson Deel., Ex. K, at 101.) Dr. Clark reiterated, however, that Breyer could
continue her education in the Adult Psychology Track, and if she so chose, could utilize an assistant
to complete the test administration requirements in the assessment course work and practicum
training, but at her own expense. (2018 Breyer Dep. 239:23-240:3; Stephenson Deel., Ex. K, at
101.) Breyer subsequently revealed that she had failed two midterm exams, and attributed her
performance to a lack of focus caused by "the stress [she was] experiencing related to ... [her]
emollment in the program." (2018 Breyer Dep. 240:4-6; Stephenson Deel., Ex. K, at 101.)
In light of the issues discussed with Dr. Clark, Breyer decided to withdraw from the PsyD
program to pursue other career goals. (2018 Breyer Dep. 240:7-9; Stephenson Deel., Ex. K, at 101.)
Dr. Clark offered Breyer additional assistance, and indicated the faculty could provide her with
"consultation about other paths to working within a legal setting and providing advocacy and or
mental health services." (2018 Breyer Dep. 240:10-15; Stephenson Deel., Ex. K, at 101.) Dr. Clark
later provided Breyer with the necessary paperwork to complete her withdrawal from the PsyD
program, and again offered any additional assistance Breyer might need. (Stephenson Deel., Ex. K,
On November 3, 2015, Breyer formally withdrew from the PsyD program at Pacific.
(Stephenson Deel., Ex. K, at 102.) On the official withdrawal form provided by Dr. Clark, Breyer
explained the reasons for her withdrawal as follows:
PAGE 34 - OPINION AND ORDER
After 8 weeks into classes, I discovered I would have to provide for my own
accommodations for the psychological evaluation classes and for practicum sites.
After considering this fact, I decided it would be almost impossible to complete the
program without the support I need. Also, I am not able to [perform] at my best at
this university because I have been questioned by many different SPP fac[ulty] about
my abilities to be a psychologist and they have suggested I should go into different
programs to reach my career goals.
(Id) Breyer allegedly felt she had no choice but to withdraw from the PsyD program. (Breyer Deel.
On November 5, 2015, Dr. Clark emailed Breyer "regarding inaccuracies in [her] withdrawal
statement." (Id; Clark Deel., Ex. 1.) With respect to Breyer's assertion she would have to provide
for her own accommodations, Dr. Clark responded:
As you know, we did discuss that you would be responsible for the cost of a personal
aide that is specific to your needs to fulfill essential functions. As you also know,
there have been multiple other discussions, including with Leaming Support
Services, regarding a variety of other auxiliary aids available from the University to
assist you in effectively pmiicipating in the program. We have repeatedly sought to
engage you in meaningful discussions regarding the possible options.
(Clark Deel., Ex. 1, at 1.) In response to Breyer's contentions regarding the conduct of SPP faculty,
Dr. Clark replied:
I appreciate that some of the conversations about possible accommodations have
been challenging. As you know, the conversations have focused on the essential
functions of the program and not individual abilities to be a psychologist. We have
all worked to find ways to help you be successful. As you and I have agreed, faculty
members have consistently approached these conversations from a supportive stance.
As we discussed previously, you have multiple options that are directly in line with
your specific career goals and interests that do not require a PsyD or forensic
evaluator training. As we do with other students, we discussed those options during
conversations about available paths that could help you meet your personal goals and
interests. This information was presented to you because of your particular desire to
play an advocacy role for people involved in the legal process.
(Id.) In closing, Dr. Clark invited Breyer to contact her if she wished to discuss the issue further.
PAGE 35 - OPINION AND ORDER
(Id.) Thereafter, Breyer left Pacific.
On January 1, 2017, Breyer filed this lawsuit against Pacific, alleging disability
discrimination and retaliation in violation of the ADA and the Rehabilitation Act of 1973, breach
of contract, and promissory estoppel. Pacific moves for summary judgment on all claims.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter oflaw." FED. R. Crv. P. 56(a). A party seeking
summary judgment bears the burden of establishing the absence of a genuine issue of material fact.
Celotex v. Catrett, 477 U.S. 317,323 (1986). If the moving party demonstrates no issue of material
fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a
genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on
the allegations set forth in the complaint, unsupported conjecture, or conclusory statements.
Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus
should be entered against "a party who fails to make a showing sufficient to establish the existence
of an element essential to that pmiy' s case, and on which that pmiy will bear the burden of proof at
trial." Celotex, 477 U.S. at 322.
To determine whether summary judgment is proper, the court must view the evidence in the
light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278,
1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be
resolved against the moving party. Hector v. Wiens, 533 F.2d 429,432 (9th Cir. 1976).
However, deference to the nonmoving party has limits. The nonmoving party must set fmih
"specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e) (emphasis added). The
PAGE 36 - OPINION AND ORDER
"mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,252 (1986). Therefore, where "the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,587 (1986)
(internal quotation marks omitted).
Pacific moves for summary judgment against each of Breyer' s claims, and the Second
Amended Complaint in its entirety. (Motion, at 2.) Pacific argues Breyer cannot establish that it
discriminated against her in violation of the ADA or Section 504, that it acted with deliberate
indifference entitling her to monetary damages under Section 504, or that a contract existed between
the parties that was subsequently breached. (Id.) Further, Pacific alleges promissory estoppel is not
warranted because Breyer cannot establish she reasonably relied on, to her detriment, any promise
made by Pacific. (Id.) Breyer refutes Pacific's arguments and claims multiple issues of material fact
exist to preclude summary judgment in this case. (Pl.'s Mem. In Opp'n to Def.'s Mot. for Summ.
J., ECFNo. 79 ("Pl.'s Opp'n"), at 20-21.) The court first considers Breyer's claims under the ADA
and Section 504, before turning to Breyer's contract claims.
Claims Under the ADA and Section 504
Breyer asse1is claims under Title III of the ADA and Section 504 of the Rehabilitation Act
(collectively, the "Acts"). Because "there is no significant difference in analysis of the rights and
obligations created by the ADA and the Rehabilitation Act," claims brought under both statutes are
often analyzed together, and case law constrning the Rehabilitation Act is often relied upon to
evaluate ADA claims. Zukle v. Regents a/Univ. ofCal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999);
PAGE 37 - OPINION AND ORDER
see also Collingsv. Longview Fibre Co., 63 F.3d 828 n.3 (9th Cir. 1995), cert denied, 516 U.S. 1048
(1996) ("The legislative hist01y of the ADA indicates that Congress intended judicial interpretation
of the Rehabilitation Act be incorporated by reference when interpreting the ADA"). Accordingly,
the court examines Breyer's ADA and Section 504 claims jointly, and incorporates judicial
interpretation of the Rehabilitation Act when appropriate to evaluate the various rights and
obligations implicated under the ADA.
Section 504 of the Rehabilitation Act "seeks to assure evenhanded treatment and the
opportunity for [individuals with disabilities] to participate in and benefit from programs receiving
federal assistance." Alexanderv. Choate, 469 U.S. 287,305 (1985). In general, Section 504 requires
[n]o otherwise qualified individual with a disability ... shall, solely by reason of his
or her disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal
29 U.S.C. § 794(a). "Program or activity," as used in Section 504, explicitly includes "a college,
university, or other postsecondmy institution[.]" 29 U.S.C. § 794(b)(2)(A). With respect to
postsecondary or vocational education services, a person is a qualified individual with a disability
if he or she "meets the academic and technical standards requisite to admission or participation in
the [funding] recipient's education program or activity." 45 C.F.R. § 84.3(1)(3) (emphasis added).
To prevail on a claim under Section 504, a plaintiff must demonstrate (1) she is an individual
with a disability; (2) she is otherwise qualified to receive the benefit at issue; (3) she was excluded
from or denied the benefits of the program solely on the basis of her disability; and (4) the program
receives federal financial assistance. Duvall v. Cty. ofKitsap, 260 F.3d 1124, 1135 (9th Cir. 2001).
PAGE 38 - OPINION AND ORDER
A plaintiff cannot recover monetary damages under Section 504 unless the defendant engaged in
intentional discrimination. Id. at 1138. A plaintiff must establish intentional discrimination by
demonstrating the defendant acted with deliberate indifference, which requires both "knowledge that
a harm to a federally protected right is substantially likely, and a failure to act on that likelihood."
Id. at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)). Even if intentional
discrimination can be established, punitive damages are not an available remedy under Section 504.
Barnes v. Gorman, 536 U.S. 181, 189 (2002).
Congress subsequently enacted the ADA "to provide clear, strong, consistent, enforceable
standards addressing discrimination against individuals with disabilities." 42 U.S. C. § 12101 (b)(2).
Title III broadens the reach of the protections enacted by Section 504, and generally provides that:
[n]o individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.
42 U.S.C. § 12182(a). The ADA thus "guarantees [persons with disabilities] more than mere access
to public facilities; it guarantees them 'full and equal enjoyment."' Baughman v. Walt Disney World
Co., 685 F.3d 1131 (2012).
Under Title III, a place of public accommodation includes all
"postgraduate private schools, or other places of education." 42 U.S.C. § 12181(7)(J).
To prevail on a claim under Title III of the ADA, a plaintiff must establish (1) she is disabled
within the meaning of the ADA; (2) the defendant is a private entity which owns, leases, or operates
a place of public accommodation; and (3) she was denied public accommodations by the defendant
because of her disability. Molski v. MJ. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). Damages
are not an available remedy under Title III. See 42 U.S.C. § 12188(a)(l) (stating available remedies
PAGE 39 - OPINION AND ORDER
for violations of Title III are those set forth by 42 U.S.C. § 2000a-3(a), which permits only civil
actions seeking injunctive relief); see also Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC,
753 F.3d 862,867 (9th Cir. 2014) ("Damages are not an available remedy to individuals under Title
III of the ADA; individuals may receive only injunctive relief').
The paiiies do not dispute that Breyer is an individual with a disability as defined by the Acts,
or that she is otherwise qualified to receive the benefit of the PsyD program. (Motion, at 18 n.5,
27-28; Pl. 's Opp'n, at 20.)
Nor do the parties dispute that Pacific is a place of public
accommodation, or that it is a private entity which receives federal financial assistance. (Id.) Rather,
the parties disagree as to whether Breyer was excluded from, denied the benefit of, or otherwise
subjected to discrimination by the PsyD program because of her disability, and whether Pacific's
actions were deliberately indifferent. (Pl.'s Opp'n, at 20.) Simply put, the instant dispute turns on
whether Pacific subjected Breyer to discrimination within the meaning of the ADA and Section 504,
and whether such actions were taken with deliberate indifference. (Motion, at 18, 24.)
The term "discrimination" is not directly or consistently defined by the Acts. Title III, for
example, contains several "general prohibitions," which constitute discrimination if violated. Such
general prohibitions include denying persons with disabilities paiiicipation, affording persons with
disabilities participation in an unequal benefit, or providing a separate benefit on the basis of
disability. 42 U.S.C. §§ 12182(b)(l)(A)(i)-(iii). Title III also sets fmih a variety of "specific
prohibitions" which constitute discrimination for the purposes of the general rule announced by 42
U.S.C. § 12182(a), including imposing eligibility criteria that dispropmiionately screens out
individuals with disabilities, failing to make reasonable modifications in policies or practices when
such modifications are necessaiy to afford persons with disabilities access to the benefit offered, and
PAGE 40 - OPINION AND ORDER
a failure to provide auxiliary aids and services. 42 U.S.C. §§ (b)(2)(A)(i)-(iii). Section 504
prohibits similar conduct. 29 U.S.C. § 794(a); 34 C.F.R. §§ 104.4(b)(l)(i)-(vi).
"Discrimination" under the Acts thus extends beyond "obviously exclusionary conduct such as a sign stating that persons with disabilities are unwelcome or an obstacle course leading to
a store's entrance" -to include "more subtle forms of discrimination ... that interfere with disabled
individuals' 'full and equal enjoyment' of places of public accommodation." Chapman v. Pier 1
Imports (US.) Inc., 631 F.3d 939, 945 (9th Cir. 2011).
That is not to say, however, that
"discrimination" is an all-encompassing concept under the Acts. Indeed, the Supreme Court has
cautioned that Section 504, and thus Title III, must be interpreted in light of "two powerful but
countervailing considerations - the need to give effect to the statutory objectives and the desire to
keep [the Acts] within manageable bounds." Alexander, 469 U.S. 298-99.
Breyer asserts ten alternative counts of discrimination: (1) denial of equal participation; (2)
provision of unequal participation; (3) discrimination in admission and recruitment; (4) unlawful preadmission inquiries; (5) unlawful eligibility criteria; (6) failure to make reasonable modifications;
(7) failure to provide auxiliary aids or services; (8) failure to investigate; (9) disability-based
environment of hostility; and (10) retaliation. 15 (SAC ,r,r 63(a)-(i).) Pacific alleges each count lacks
sufficient evidentiary support to establish a legally cognizable claim. (Def.' s Reply in Supp. of Mot.
for Summ. J., ECF No. 92 ("Def. 's Reply"), at 2.) Accordingly, the court must dete1mine whether
an issue of material fact exists with respect to all counts of discrimination alleged.. The court
considers the individual counts of discrimination chronologically for clarity.
The court numbers the individual counts of discrimination in the order in which they are
alleged in the SAC.
PAGE 41 - OPINION AND ORDER
Counts 3 and 4: Discrimination in Admission or Recruitment and Unlawful PreAdmission Inquiries
In general, a qualified person with a disability may not be denied admission to a
postsecondary educational institution or otherwise subjected to discrimination in admission and
recruitment on the basis of disability. 34 C.F.R. § 104.42(a). In the context of postsecondary
admissions, a variety of practices are prohibited, including placing a numerical or proportional cap
on the number of individuals with disabilities who may be admitted, utilizing admission tests or
criteria that have a disproportionately adverse effect on individuals with disabilities, or engaging in
"preadmission inquiry as to whether an applicant for admission is [an individual with a disability]."
34 C.F.R. § 104.42(b)(l), (4).
Breyer acknowledges she was offered and accepted admission to the PsyD program, but
contends Pacific discriminated against her during the admissions process in the following ways: (1)
Dr. Lane "refused" to rate Breyer's clinical potential during her in-person interview; (2) Pacific
required Breyer to submit to an additional interview to discuss her disability; (3) Pacific asked
questions umelated to the essential functions of the PsyD program during her follow-up interview;
and (4) Pacific considered her disability in the admissions process after she had confirmed that she
could perform all essential functions. (SAC ,r 63(c), (d); Pl.'s Opp'n, at 32-37.) Pacific responds
that none of Breyer' s allegations establish a viable claim under the Acts. (Def.' s Reply, at 3-9.)
Dr. Lane's Conduct During the In-Person Interview
Breyer alleges Dr. Lane "refus[ed] to complete her in-person interview evaluation based
solely on her disability." (PL' s Opp 'n, at 33.) Specifically, Breyer alleges Dr. Lane rated her clinical
potential as "above average" when he reviewed her written application, but subsequently refused to
PAGE 42 - OPINION AND ORDER
rate her clinical potential when he interviewed her in-person. (Id.) Breyer contends Dr. Lane's
refusal to provide a rating was occasioned solely by his observations of her disability, which she
argues constitutes discrimination under the Acts. (Id.)
Dr. Lane's failure to rate Breyer's clinical potential did not exclude or otherwise hamper her
access to the PsyD program - Breyer was unquestionably offered admission to the SPP as a result
of the admissions process. Moreover, Breyer's claim that Dr. Lane's willingness to rate her clinical
potential on the basis of her written materials evidences his discriminatory motive in declining to
rate her clinical potential in person oversimplifies the record. In his deposition testimony, Dr. Lane
explained that an applicant's "clinical potential" largely measures his or her "ability to form and
maintain relationships and understand others, care about others, et cetera." (Lane Dep. 42:3-7.)
Though "the endpoint is the same" insofar as what the clinical potential rating purportedly measures,
what informs the rating differs according to the specific context in which it is considered. (Lane
Dep. 41: 13-19.) In reviewing an applicant's written materials, for example, Dr. Lane testified that
he analyzes how the applicant describes personal interactions, whether it appears the applicant has
a realistic understanding of what is required in clinical practice, and whether the written work
demonstrates an ability to connect with and understand others. (Lane Dep. 41:20--42:7.) In the
context of the in-person interview, however, Dr. Lane testified that rating an applicant's clinical
potential requires a subjective assessment of various interpersonal characteristics. (Id. 50:11-15.)
Though Breyer attempts to cast the clinical potential ratings as interchangeable, Dr. Lane anives at
each in different ways - one is gleaned solely from the substance of written materials, and the other
is garnered, at least in part, by observing and assessing an individual's presentation.
Dr. Lane testified to his belief that he could not accurately rate Breyer's clinical potential
PAGE 43 - OPINION AND ORDER
during the in-person interview "due to the pace and tone of her verbal communication, her eye
contact, and her facial expressions." (Lane Dep. 50:2-4; Lane Deel. ,r,r 6-7.) Contrary to Breyer's
assertion that discriminatory animus colored Dr. Lane's "refusal" to rate her clinical potential during
the in-person interview, the record reflects Dr. Lane was uncertain as to how to properly evaluate
Breyer's clinical potential given the involuntary nature of certain aspects of her presentation. Dr.
Lane thus did not simply decline to complete Breyer's in-person evaluation, he subsequently
consulted his colleagues to determine, among other things, "how to provide an appropriate and fair
rating" under the circumstances. (Lane Deel. ,r 7.) Breyer identifies no evidence to the contrary, and
provides no authority to suggest the Acts prohibit further analysis and discussion among relevant
officials to ensure admissions criteria are fairly applied to applicants with disabilities. Accordingly,
Dr. Lane's failure to rate Breyer's "clinical potential" during the in-person interview does not
amount to discrimination under the Acts.
Pacific's Request to Discuss the Essential Functions in a Follow-Up Phone
Breyer alleges Pacific discriminated against her by treating her "differently than similarly
situated non-disabled applicants when it conducted a follow-up phone interview[.]" (Pl.'s Opp'n,
at 33.) Specifically, Breyer contends she is the only student in Pacific's history to be subjected to
an additional interview to discuss the essential functions prior to admission, which demonstrates that
" [t]he phone interview was really a reason to discuss [Pacific's] assumptions and concerns regarding
[her] disability." (Id. at 34.) Breyer alleges evidence in the record, specifically an email regarding
Breyer's candidacy and Pacific's deviation from its general admissions practices, indicates that the
purpose of the March 12 phone call was not to discuss the essential functions, but rather to determine
PAGE 44 - OPINION AND ORDER
whether Pacific could afford to accommodate her in the PsyD program. (Id)
These allegations fail for several reasons. First, although Breyer objects that Pacific treated
her differently than non-disabled applicants by requesting a follow-up phone call to discuss the
essential functions, the Acts do not dictate that persons with disabilities must be provided an
experience identical to that of persons without disabilities. See e.g., 42 U.S.C. § 12182(b)(l)(B)
(requiring a public accommodation to afford individuals with disabilities its goods, services, or
benefits "in the most integrated setting appropriate to the needs of the individual"); 34 C.F.R. §
104.4(b)(2) (noting that an entity's aids, benefits, or services "are not required to produce the
identical result or level of achievement for [individuals with disabilities and non-disabled
individuals]" to be "equally effective," they simply must provide the same oppmiunity to benefit or
succeed as that provided to individuals without disabilities). The Acts thus do not "compel
educational institutions to disregard [an individual's disabilities]." Davis, 442 U.S. at 405. Rather,
an educational institution must take steps to determine whether an applicant with a disability is
otherwise qualified to participate in its programs, that is, whether he or she meets the requisite
academic and technical standards for admission. Id; see also 45 C.F.R. § 84.3(1)(3) (a qualified
individual with a disability is one who "meets the academic and technical standards requisite to
admission or paiiicipation in the recipient's education program or activity"). Technical standards
include all academic and non-academic criteria essential to meaningfully participate in a given
program, Davis, 442 U.S. at 406-07, and admission cannot be denied without determining whether
the requisite standards could be met with reasonable accommodation .. Wong v. Regents ofthe Univ.
of Cal., 192 F.3d 807,816 (9th Cir. 1999) (quoting Zukle v. Regents of the Univ. of Cal., 166 F.3d
1041, 1047 (9th Cir. 1999)). The Supreme Court has noted that non-academic criteria such as
PAGE 45 - OPINION AND ORDER
"legitimate physical qualifications" may be essential to participation in certain programs. Davis, 442
U.S. at 407.
Breyer referenced her disability several times throughout her application materials, and Dr.
Lane observed the physical manifestations of her disability when he interviewed her on Interview
Day. Dr. Lane subsequently developed concerns regarding Breyer's ability to perform certain
functions essential to complete the PsyD program, concerns that were shared and discussed with his
colleagues. Based on those concerns, Pacific sought additional infonnation via an additional phone
conversation to "assess overall [Breyer' s] functional ability to complete the program with or without
accommodations." (2018 Clark Dep. 58 10-23.) Such conduct in and of itself does not violate the
Second, the phone call to discuss the essential functions of the PsyD program, though not
historically an aspect of Pacific's admissions practices, was not prohibited by any policy or
procedure in place at Pacific. (Id. 55:6-10; 57:3-59:17.) In fact, Dr. Clark testified that when
interactions with an applicant raises questions about whether he or she can perform all essential
functions necessary to complete the PsyD program, the steps taken to make that determination "can
take whatever form" is helpful under the circumstances. (2018 Clark Dep. 58: 1-25.) Breyer points
to no evidence to the contrary.
Finally, Breyer's contention that the purpose of the phone call was to determine whether
Pacific could financially afford to accommodate her is not supported by the record. Breyer points
to an email sent by Dr. Brems to Drs. Ankeny and Barr-Gillespie, alleging it demonstrates Dr.
Brems' belief that "Breyer would need accommodation that the university could not provide." (Pl.' s
Opp'n, at 34.) Though the email at issue mentioned Dr. Brems's concern that "[they did] not have
PAGE 46 - OPINION AND ORDER
the resources within [the] SPP to provide all [of] the accommodations" that might be necessary in
Breyer' s case, it primarily sought guidance due to uncertainty as to "whether [Breyercould] perform
all essential functions listed for the PsyD program." (Stephenson Deel., Ex. N, at 4.) Dr. BarrGillespie's response echoes this focus, making no mention of the potential cost of accommodating
Breyer, but instead emphasizing the essential functions as a framework for judging the
reasonableness of potential accommodations. (Id. at 3.) She warned that providing accommodations
"outside of [Pacific's] . . . usual and customary approach" could result in "graduating students who
cannot fulfill the essential functions of our professions, [which would be] at odds with our stated
mission," and concluded that "careful discussion" of Breyer' s candidacy was required. (Id) The
emails between Dr. Brems and Drs. Ankeny and Barr-Gillespie thus demonstrate that Pacific's
concern was whether Breyer could meet the essential functions with reasonable, as opposed to
potentially program-altering, accommodations, and not whether it could afford to accommodate her.
Accordingly, Breyer has failed to create a question of fact that Pacific discriminated against her in
the admissions process by requesting a conversation to discuss the essential functions of the PsyD
The Substance of the March 12, 2015 Phone Call
Breyer also challenges the substance of the March 12 phone call, alleging Pacific
discriminated against her by making improper pre-admission inquiries regarding her disability. (Pl.' s
Opp'n, at 34-36.) Specifically, Breyer alleges Pacific asked "pointed, specific questions about
specific tasks" instead of asking her if she needed accommodations generally, and asked her
questions "wholly unrelated to program-related functions." (Id at 36.) Pacific responds that, despite
Breyer's allegations to the contrary, the questions asked during the March 12 phone call were not
PAGE 47 - OPINION AND ORDER
wholly unrelated to program functions, but even if they were, the questions asked did not result in
Breyer's exclusion from the PsyD program. (Def.'s Reply, at 8.)
The Acts prohibit educational institutions from "mak[ing] preadmission inquir[ies] as to
whether an applicant for admission is [an individual with a disability]," but allows "inquiries on a
confidential basis as to [disabilities] that may require accommodation" once the applicant is
admitted. 34 C.F.R. § 104.42(6)(4). The plain language of the controlling regulation thus expressly
dictates that an educational institution may not inquire as to an applicant's disability status prior to
admission, but leaves ambiguous the question of whether and to what extent inquiry is permitted
when such status is known.
Title I of the ADA is instructive in this respect. For example, Title I similarly prohibits preemployment inquiry as to an applicant's disability status, as well as inquiry concerning the nature
and severity of an applicant's disability. 29 C.F.R. § 1630.13(a). Title I expressly permits, however,
inquiry as to "the ability of an applicant to perform job-related functions," and allows regulated
entities to "ask an applicant to describe or demonstrate how, with or without reasonable
accommodation, the applicant will be able to perform job-related functions."
29 C.F.R. §
1630.14(a); See also Harris v. Harris & Hart, Inc., 206 F.3d 838, 842, (9th Cir. 2000) (noting preemployment inquiries are appropriate "when an employer could reasonably believe that an
applicant's known disability will interfere with the performance of a job-related function"). Inquiry
as to possible accommodations to facilitate the performance of such functions therefore is also
Though such inquiries are not explicitly permitted by Section 504 or Title III, they are similar
in scope and substance to the types of inquiries necessary to determine whether an applicant with a
PAGE 48 - OPINION AND ORDER
disability is otherwise qualified to participate in or benefit from an educational institution's programs
that is, whether he or she meets all academic and technical criteria for admission. Thus, it is
reasonable to conclude that 34 C.F.R. § 104.42(b)(4) does not prohibit inquiry as to an applicant's
ability to perform program-related functions when an educational institution has reason to believe
a known disability may impede the performance of such functions, and that educational institutions
are permitted to ask an applicant questions as to how he or she will perform program-related
functions and what accommodations might be necessary to do so. The parties agree such inquiries
are permitted under the Acts.
Breyer' s allegations that Pacific unlawfully inquired about her disability before she was
offered admission to the SPP fails for two reasons. First, Breyer revealed her status as an individual
with a disability in her written application materials. She also requested an accommodation for
Interview Day, where SPP faculty observed her obvious speech and motor impairments. Having
witnessed the extent of Breyer' s physical impairments, the record shows that SPP faculty reasonably
believed Breyer's disability might interfere with program-related functions, particularly
communicating with clients and administering clinical assessment tests. Pacific thus did not violate
the Acts by asking questions about her ability to perform such functions and how she would perform
such functions, with or without accommodations.
Second, though Breyer insists that certain questions during the March 12 phone call, such
as "how children and adults react to her, if she can airnnge blocks, whether she had ever used a
personal aid to assist with her disability, and whether she had been evaluated by a doctor" violate
the Acts, those questions did not seek to uncover the nature or severity ofBreyer's disability, nor did
Breyer' s answers reveal any specific details of her disability status. Rather, the challenged questions
PAGE 49 - OPINION AND ORDER
concerned either Breyer's ability to perform program-related functions -
arranging blocks, for
example, which is required to administer a specific subtest in the Cognitive Assessment course, and
clear communication with clients, which may involve children or adults -
or how she might
perform program-related functions-that is, whether she needed accommodation to perform certain
tasks, whether she had been evaluated by a doctor to determine what kind of accommodations might
be necessary, or whether she had utilized a specific accommodation in the past. Breyer was not
excluded from or denied the benefit of the PsyD program, she was offered admission.
Consideration ofBreyer 's Disability in the Admission Decision
Breyer alleges Pacific discriminated against her in the admissions process by considering her
disability in determining whether to offer her admission to the SPP.
(Pl.'s Opp'n, at 37.)
Specifically, Breyer points to emails sent between members of the admissions committee following
the March 12 phone call, arguing that their discussion "of whether Breyer would be able to 'meet
the challenges of our graduate program,' her speech impairment, her 'communication with clients,'
and their comments that 'it would be hard for us to assume we could predict success/failure in this
case than in others,' and that 'takes the chance as any other student,' is evidence that "the SPP was
not concerned with whether [she] could perform the essential functions of its program ... but rather
with its own conjectures regarding Breyer' s abilities and whether it believe she could (or could not)
ultimately succeed as a student in light of her disability." (Id)
Though "mere possession of a [disability] is not a permissible ground for assuming [a
prospective student's] inability to function in a particular context," Davis, 442 U.S. at 405, Breyer's
allegations misrepresent and otherwise mischaracterize the record. Breyer selectively quotes from
a string of emails summarizing the March 12 phone call, arguing the resulting collection of isolated
PAGE 50 - OPINION AND ORDER
phrases demonstrates Pacific's improper reliance on its own assumptions about Breyer's abilities to
determine whether to admit her to the SPP. But the emails in question, when read fully and in
context, reveal the opposite. In fact, the admissions committee's conclusion that "all students are
taking a chance that they will be able to meet the challenges of [the PsyD] progam, and as long as
[Breyer] signs the Essential Functions, it would be hard [to] assume ... success/failure [could be
predicted] better in [her] case than in others," (Stephenson Deel., Ex. K, at 78-79), indicates that
Breyer' s disability was not a factor that held any weight once it was determined that she met all of
the technical requirements of the PsyD program. But even if Pacific had relied on particular
assumptions about Breyer' s abilities to determine whether or not she should be admitted to the SPP,
such reliance resulted in an offer of admission rather than a denial. Thus, Breyer was not excluded
or otherwise denied the benefit of the PsyD program by Pacific's consideration of her disability in
the admissions process.
For the reasons detailed above, Pacific did not discriminate against Breyer during the
admissions process by refusing to rate her clinical potential during the in-person interview, by
requesting a follow-up conversation to discuss the essential functions, by improperly inquiring about
her disability, or by improperly considering her disability in determining whether to offer her
admission to the SPP, and Breyer ultimately was not excluded or otherwise denied the benefit of the
PsyD program. Accordingly, no issues of material fact exist with respect to Counts 3 and 4.
Counts 1 and 2: Denial of Equal Participation and Provision of Unequal
Discrimination under Title III includes denying, on the basis of disability, "the opportunity
PAGE 51 - OPINION AND ORDER
. . . to participate in or benefit from the goods, services, facilities, privileges, advantages, or
accommodations of an entity," and "afford[ing] an individual ... on the basis of disability ... [an]
opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or
accommodation that is not equal to that afforded to other individuals."
42 U.S.C. §§
12182(b)(l)(A)(i), (ii). Section 504 similarly prohibits such conduct. See 29 U.S.C. § 794(a)
(recipient of federal funds prohibited from "exclud[ing] [an individual with disabilities] from ...
participation in" or "den[ying] [an individual with disabilities] the benefits of' a program or activity
solely on the basis of disability); 45 C.F.R. § 84.4(b)(ii) (when providing any aid, benefit, or service,
prohibited discriminatory actions by recipient of federal funds include "[a]ffording a qualified
[person with a disability] the opportunity to participate in or benefit from the aid, benefit, or service
that is not equal to that afforded to others"). The Acts thus require regulated entities to provide
individuals with disabilities "meaningful access" to their programs, services, or benefits. See Bird
v. Lewis & Clark College, 303 F.3d 1015, 1020 (2002) (noting regulated entities must take
affirmative steps to provide individuals with disabilities meaningful access to its programs); see also
Kalani v. Starbucks Corp., 117 F. Supp. 3d 1078, 1087 (N.D. Cal 2015)(regulated entities cannot
afford individuals with disabilities an experience that is not "functionally equivalent" to that
provided to individuals without disabilities). "[T]he central inquity is whether the program, when
viewed in its entirety, is readily accessible to and usable by individuals with disabilities." Bird, 303
F.3d at 1021 (internal quotations and citations omitted).
Pacific moves for summary judgment on Counts 1 and 2, alleging Breyer cannot establish
she was denied the full and equal enjoyment of the PsyD program. (Motion, at 19.) In response,
Breyer alleges Pacific denied her participation or provided her with an opportunity to patiicipate in
PAGE 52 - OPINION AND ORDER
an unequal benefit by (1) taking various actions during the admissions process based on assumptions
about her disability; (2) failing to follow-up with Dr. Cobble-Temple to determine how to best
provide her with access to education after she was admitted to the SPP; (3) focusing on her
limitations; and (4) failing to investigate and remedy her complaints of discrimination. (Pl.' s Opp 'n,
at 21-30.) Pacific refutes Breyer's arguments, and contends, among other things, that Breyer was
never denied meaningful access to the PsyD program. (Def.'s Reply, at 17-21.)
Pacific's Conduct During the Admissions Process
Breyer alleges Pacific denied her equal opportunity to participate in or benefit from the PsyD
program by deviating from its admissions procedures and treating her differently from applicants
without disabilities. (Pl. 's Opp'n, at 25-26.) Specifically, Breyer contends that faculty and staff of
the SPP engaged in "panicked meetings and emails" to discuss her application after becoming aware
of her disability, that she was the only student in the SPP' s history to be subjected to a pre-admission
phone call to discuss the essential functions, and that Pacific considered her disability when it
decided to offer her admission to the PsyD program. (Id. at 25-26.) Pacific's actions during the
admissions process, Breyer argues, were "based only on its own conjectures about [her] abilities, in
light of her disability." (Id. at 26.)
As discussed supra, Breyer was not denied patiicipation in the PsyD program as a result of
Pacific's conduct during the admissions process. Pacific's deviation from its general admissions
practices, discussions regarding Breyer' s application, and consideration of her disability in its
deliberations did not exclude or otherwise deny Breyer the opportunity to benefit from the PsyD
program. Though Breyer finds Pacific's conduct during the admissions process objectionable, such
conduct did not impede her ability to pursue or obtain a PsyD degree. Indeed, the challenged
PAGE 53 - OPINION AND ORDER
conduct ultimately resulted in Breyer' s admission to the SPP as a student in the PsyD program.
Nor did Pacific's conduct during the admissions process afford Breyer an unequal
opportunity to participate in the PsyD program. First, whether the deliberations of the admissions
committee consisted of "panicked emails and meetings" is of no consequence because those
deliberations resulted in Breyer' s admission to Pacific.
Second, though Breyer appears to argue that any deviation from regular admissions practices
violates the Acts, as explained above, educational institutions are not required to ignore an
individual's disabilities. Davis, 442 U.S. at 405. Rather, the Acts permit institutions such as Pacific
to investigate further if there are questions whether an applicant meets all academic and technical
requirements for admission. Id. The record demonstrates that Pacific sought additional information
from Breyer via a follow-up phone conversation, and thereafter provided her with the essential
functions document to confirm she met all technical requirements of the PsyD program. The Acts
do not prohibit such conduct, and even if they did, a single pre-admission phone conversation and
the early provision of a single document does not render the opportunity to participate in the PsyD
program afforded to Breyer unequal as a whole.
Finally, whether Pacific considered Breyer's disability in the admissions process is of no
consequence, because the decision made was to include her in the PsyD program, not to exclude her.
Thus, such conduct did not deny Breyer' s participation in the PsyD program or afford her an unequal
opportunity to participate in the PsyD program compared to her peers.
In sum, the evidence is insufficient to suggest that the admission committee's deliberations,
request that Breyer participate in a pre-admission phone call to discuss the essential functions, or
consideration of Breyer' s disability during the admissions process resulted in Breyer' s exclusion
PAGE 54 - OPINION AND ORDER
from the PsyD program or somehow afforded her an unequal oppmiunity to paiiicipate in the PsyD
program. Rather, Breyer was offered, and accepted, the same opportunity to earn a PsyD degree as
that offered to applicants without disabilities, and the challenged conduct ultimately had no bearing
on her access to the PsyD program as a whole. Accordingly, Breyer fails to establish Pacific
discriminated against her during the admissions process by denying her paiiicipation in the PsyD
program, or by affording her an opportunity to participate in the PsyD program that was not
functionally equivalent to that provided to students without disabilities.
Pacific's Failure to Follow-Up With Dr. Cobble-Temple
Breyer alleges that after her admission to the SPP, Pacific received general information from
Dr. Cobble-Temple that "should have put [Pacific's] fears to rest." (Pl. 's Opp'n, at 27.) Though Dr.
Cobble-Temple made herself available as a resource, there was no additional communication from
Pacific. Breyer alleges that Pacific should have followed-up with Dr. Cobble-Temple to investigate
"how to provide [her] with access to education," that its failure to do so constitutes discrimination,
and that "[Pacific's] failure to educate itself simply demonstrates that it was not interested in
ensuring [her] the same access to education it provided to non-disabled students." (Id.)
Although an educational institution is required to take affirmative steps to provide individuals
with disabilities meaningful access to its programs under the Acts, there is nothing to suggest similar
steps must be taken to investigate how to "provide access to education" in the abstract, much less
that those steps must include the specific action Breyer demands here. Indeed, such a requirement
would stand contrary to the entity's duty to conduct a fact-specific inquiry to determine appropriate
accommodations in light of individual circumstances, effectively excluding the individual seeking
access from the conversation.
Dr. Cobble-Temple's own declaration acknowledges that
PAGE 55 - OPINION AND ORDER
individualized analysis is necessary, explaining that educational institutions seeking to provide
"equal access" to its programs must "work in conjunction with students" to determine "the most
effective accommodation strategies to meet the essential functions," an inquiry her own PsyD
program engages in "on a case-by-case basis." (Cobble-Temple Deel. ,r 20.)
Pacific took proactive steps, months in advance and of its own accord, to staii gathering
general information about the types of modification and support that might be necessary to
accommodate Breyer during her tenure as a student. (See Arnaut Dep. 123:22-124:2 (noting she
contacted Dr. Cobble-Temple after Breyer' s admission to the PsyD program "to proactively think
about what we could do to help her be successful").) The Acts do not require Pacific to continue
those eff01is to a stopping point of Breyer's choosing. More imp01iantly, Breyer does not explain,
and the court cannot surmise, how Pacific's failure to "follow-up" with Dr. Cobble-Temple resulted
in Breyer being denied participation in the PsyD program, or how such failure resulted in the
provision of an unequal opportunity to participate in the PsyD program as a whole. Pacific's failure
to further correspond with Dr. Cobble-Temple following Breyer's admission thus does not amount
to discrimination under the Acts.
Pacific's Focus on Breyer 's Limitations
Breyer alleges Pacific focused on unwarranted assumptions about her limitations, resulting
in her unequal participation in the PsyD program. (Pl. 's Opp'n, at 27-30.) Breyer points to various
meetings she attended with SPP faculty, insisting that whose discussions unnecessarily focused on
the internship requirement and clinical assessment testing, neither of which was imminent. (Id.)
Specifically, Breyer alleges that (1) SPP faculty had a meeting to discuss Breyer's admission to the
program in which Dr. Brems's "focus was on communicating to Breyer that she would not be able
PAGE 56 - OPINION AND ORDER
to obtain the internships she proposed;" (2) Dr. Li questioned whether Breyer had chosen the right
career path; and stated she could not recommend Breyer to practicum sites because she was unsure
if Breyer could do the work; and (3) Pacific continuously made "unsolicited, unwanted, and
unneeded offers of' advance planning,' which she alleges "are evidence ofdiscrimination." (Id. at
28-30 (emphasis in original).) Pacific responds that Breyer' s allegations misstate the factual record
or otherwise fail to demonstrate she was denied meaningful access to the PsyD program as a whole.
(Def.'s Reply, at 19.)
As previously explained, Breyer was not denied paiiicipation in the PsyD program. She was
admitted to and attended Pacific as a student in the PsyD program until she withdrew in October
2015. Nor did Pacific's alleged focus on her limitations result in Breyer's unequal participation in
the PsyD program as a whole.
At the outset, the court notes that Breyer' s claim concerning Dr. Brems mischaracterizes the
record. Though Dr. Brems admitted in her deposition testimony that a meeting was held between
SPP faculty and that she wished to discuss the internship requirement, Dr. Brems's concern arose
from Breyer's email to Dr. Elder announcing that she had identified three potential internship sites.
(Brems Dep. 56:8-24.) Because students must secure internships through the online national match
process, Dr. Brems's focus was on correcting Breyer's demonstrated misunderstanding as to the
mandatory procedure for student placement, a focus wholly unrelated to her disability.
Breyer's allegations concerning Dr. Li must also fail to find support in the record. Dr. Li's
comments were made during the course of a single meeting. There is no evidence Breyer worked
with or even came into contact with Dr. Li at any other time during her tenure as a student in the
PsyD program, nor is there evidence that Breyer asked for, but was denied, a recommendation from
PAGE 57 - OPINION AND ORDER
Dr. Li for a practicum site. Though Breyer may have taken offense, two statements made within the
context of a single meeting did not interfere with Breyer' s access to the PsyD program or render her
experience in the PsyD program unequal as a whole.
Lastly, Breyer's allegations that Pacific discriminated against her by attempting to plan
accommodations in advance directly contradict her allegations concerning Pacific's failure to
investigate as set forth in Count 6, discussed infra. Breyer insists Pacific's attempts to discuss and
plan appropriate accommodations for the Cognitive Assessment course constitute discrimination
because those efforts were undertaken too early, but she simultaneously claims that Pacific's
investigation of the same potential accommodations was initiated too late, and thus also constitute
discrimination. The result Breyer suggests, that Pacific is in violation of the Acts both by attempting
to investigate and plan appropriate accommodations in advance and by waiting until an
accommodation is requested, is unreasonable.
Neve1iheless, the record indicates that the question ofwhether Breyer needed accommodation
for clinical assessment testing was discussed in only three of the six meetings Breyer had with SPP
faculty: the meeting with Drs. Arnaut and Li on October 12, 2015, held in response to Breyer's
comment that Pacific had not been supportive of her needs, (Li Dep. 80: 10-20); the meeting Breyer
requested with Drs. Arnaut and Clark on October 19, 2015, to discuss the remaining program
requirements, (Richman Deel., Ex. 1, at 98-99); and the final meeting with Dr. Clark on October 26,
2015, in which Breyer withdrew from Pacific. That potential accommodations were discussed at
three meetings -
two of which occurred after Breyer affirmatively stated that she might need
accommodations for the Cognitive Assessment course - is not enough to deny Breyer equal access
to the PsyD program as a whole. Pacific's conduct thus does not amount to discrimination under the
PAGE 58 - OPINION AND ORDER
Pacific's Handling of Breyer 's Complaints
Breyer alleges Pacific blatantly ignored her complaints about her treatment during the
admissions process, as well as her treatment by Dr. Tram. (Pl.'s Opp'n, at 28-29.) Though she first
complained in May about the March 12 phone call, Breyer alleges Pacific subsequently took no
action to address her complaints. (Id.) Breyer also claims her complaints about Dr. Tram were "met
with skepticism and an assumption Breyer was wrong." (Id. at 29.)
But the record shows Pacific addressed Breyer's concerns as they arose: Dr. Elder agreed to
meet with Breyer once she moved to Oregon to discuss "the way the university handled issues of
diversity" during the March 12 phone call, (Elder Dep. 171 :9-172:18); Dr. Elder, Dr. Tasker, and
Dr. Brems met with Breyer, at her request, to discuss her concerns soon after classes commenced,
(2017 Breyer Dep. 111 :19-112:3, 112:22-113:10); Dr. Tram's conduct was discussed in more than
one meeting in which Breyer declined assistance in remedying the situation (2018 Breyer Dep.
145:2-146:3, 170:3-12, 217:11-14); Dr. Clark nevertheless addressed the issue with Dr. Tram
privately and shared Breyer's concerns with Dr. Tasker, the Academic Director (2017 Clark Dep.
22: 1-24:2); and Breyer was provided with information detailing the steps to initiate a formal
investigation into her complaints, though she never followed through with those steps (July Richman
Deel., Ex. 1, at 81; 2018 Breyer Dep. 219:25-220:12). Breyer's allegations concerning Pacific's
"deflection" of her complaints thus find no basis in the record before the court.
Furthermore, there is no evidence that Pacific's handling ofBreyer' s complaints impeded her
access to the PsyD program as a whole. Pacific's handling of Breyer' s complaints thus did not deny
her participation in the PsyD program and did not result in her unequal participation in the PsyD
PAGE 59 - OPINION AND ORDER
For the reasons set forth above, Breyer has failed to demonstrate that she was excluded from
the PsyD program or otherwise afforded an opportunity to participate in the PsyD program that was
unequal to that afforded to students without disabilities due to Pacific's conduct during the
admissions process, its failure to follow-up with Dr. Cobble-Temple, its focus on her limitations, or
its deflection of her complaints. Accordingly, no issue of material fact exists with respect to Counts
1 and 2.
Count 5: Use of Unlm1ful Eligibility Criteria
Under Title III, discrimination includes "the imposition or application of eligibility criteria
that screen out or tend to screen out an individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or
accommodations[.]" 42 U.S.C. § 12182(2)(A)(I); 28 C.F.R. § 36.301(a). Utilizing such criteria is
similarly proscribed under Section 504. See 34 C.F.R. § 104.4(b)(4) (recipient of federal funds may
not "utilize criteria ... that have the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the recipient's program or activity with respect to [individuals
with disabilities]"). However, eligibility criteria shown to be "necessary for the provision of the
goods, services, facilities, privileges, advantages, or accommodations being offered" are not
discriminatory, even if such criteria tends to screen out individuals with disabilities. 42 U.S.C. §
In the context of education, the Ninth Circuit has instructed that a healthy measure of
deference must be extended to an educational institution's academic decisions, including what
PAGE 60 - OPINION AND ORDER
requirements are "necessary" to ensure fulfillment of program objectives, so long as the institution's
academic judgment is not disguising "truly discriminatory requirements." Zukle, 166 F.3d at
104 7-48. The educational institution bears the burden of providing a sufficiently developed record
to demonstrate that it "conscientiously considered all pertinent and appropriate information in
making its decision." Wong, 192 F .3d at 823. Once that burden is met, the court must defer to the
educational institution's academic judgment. Zukle, 166 F.3d at 1048.
Breyer contends that requiring students to physically administer clinical assessment tests
"would have the dispropmiionate effect of excluding individuals with disabilities, like [her]," and
"would tend to create a direct bar to individuals with motor impairments." (Pl.'s Opp'n, at 39-40
(emphasis in original).) She further argues such a requirement is not a necessary component of the
PsyD program because it strays from industry standards and practices typical of other PsyD
programs. (Id. at 40.) Accordingly, Breyer alleges Pacific's academic judgment in this regard is not
entitled to deference. (Id. at 40.) Pacific responds that Breyer offers no evidence that she, or any
other person with a disability, was screened out or excluded from the PsyD program by the Cognitive
Assessment course requirements. (Def.'s Reply, at 15.) Further, Pacific argues Breyer has failed
to overcome the deference due to its academic judgment, because whether students must
independently conduct clinical assessments is an unsettled question in the psychological community.
(Id. at 15-16.)
Breyer' s allegations that Pacific utilized unlawful eligibility criteria suffer from two fatal
flaws. First, as Pacific points out, Breyer has provided no evidence that she, or any other individual
with a disability, was screened out or otherwise excluded from the PsyD program due to a
requirement that students must physically administer clinical assessment tests as pati of the PsyD
PAGE 61- OPINION AND ORDER
curriculum. Indeed, Breyer withdrew before enrolling in the Cognitive Assessment course, the
earliest instance where the test administration requirement would have been applicable. Moreover,
Breyer alleges she "is notthe first student in the SPP with a physical disability," (Pl.'s Opp'n, at 38),
but she does not allege that any other students with physical disabilities who attended the SPP were
screened out or adversely impacted by the test administration requirement. Thus, even if the test
administration requirement appears on its face to screen out individuals with motor impairments, the
evidence before the court indicates it has not effectively done so in practice.
Second, Breyer argues the test administration requirement is not a necessary component of
the PsyD program because it represents "a substantial departure from AP A guidelines, industry
standards, and the practices of other similar PsyD programs," but she neglects to acknowledge that
Pacific was in the process of making that determination when she withdrew. (See Stephenson Deel.,
Ex. K, at 91 (action plan to include "discussion with faculty about SPP's view on allowable testing
accommodations (e.g., does student have to administer all subtests herself?")); Clark Deel.
19 (explaining that "it was important for the PsyD program to consider whether it was essential to
the learning objectives of the [Cognitive Assessment course] for students to actually administer all
Pacific was obligated to conscientiously consider all pertinent and appropriate
information in determining whether standardized administration of clinical assessment tests is a
necessary component of student training to the fulfill the academic objectives of the PsyD program,
and it does not violate the Acts by doing so.
Thus, for the reasons enumerated above, Pacific did not utilize unlawful eligibility criteria
that excluded, or had the tendency to exclude, Breyer or any other individuals with disabilities from
the PsyD program. Accordingly, no issue of material fact exists with respect to Count 5.
PAGE 62 - OPINION AND ORDER
Counts 6, 7, and 8: Failure to Investigate Reasonable Accommodations, Failure to
Make Reasonable Modifications, and Failure to Provide Auxilia,y Aids
To facilitate meaningful access to its programs, educational institutions have a "mandatmy
obligation ... to engage in an informal interactive process 'to clarify what [an] individual [with
disabilities] needs and [to] identify the appropriate accommodation.'" Vinson v. Thomas, 288 F.3d
1145, 1154 (9th Cir. 2002) (quoting Barnettv. US. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000)
(en bane), vacated on other grounds, 535 U.S. 391 (2002)); see also Wong, 192 F.3dat 818 (quoting
Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993)) (the Acts create "a duty to 'gather
sufficient information from the [individual with a disability] and qualified expe1is as needed to
determine what accommodations are necessary to enable [the individual to meet the standards in
question]"). The interactive process "is triggered upon notification of the disability and the desire
for accommodation." Vinson, 288 F.3d at 1154 (citing Barnett, 228 F.3d at 1114). The Acts do not
require regulated entities "to make any and all possible accommodations that would provide full and
equal access to disabled patrons; they need only make accommodations that are reasonable."
Baughman, 685 F.3d at 1135.
To accommodate an individual with a disability, an educational institution may be "required
to make reasonable, but not fundamental or substantial, modifications to its programs." Bird, 303
F.3d at 1020 (citing Alexander, 469 U.S. at 300); see also 42 U.S.C. § 12182(b)(2)(A)(ii)
("discrimination" includes failing to make reasonable modifications ... when such modifications
are necessary to afford ... goods, services, facilities, privileges, advantages, or accommodations to
individuals with disabilities); 34 C.F.R. § 104.44(a) (academic institutions must "make such
modifications to its academic requirements as are necessary to ensure that such requirements do not
PAGE 63 - OPINION AND ORDER
discriminate or have the effect of discriminating, on the basis of [disability], against a
qualified ... applicant or student [with a disability]"); Davis, 442 U.S. at 413 (school was not
obligated to substantially modify its programs or lower its standards to accommodate students with
Educational institutions must also "take such steps as are necessary to ensure that no [student
with a disability] is denied the benefits of, excluded from participation in, or otherwise subjected to
discrimination because of the absence of educational auxiliary aids." 34 C.F .R. § 104.44(d)
(emphasis added); see also 28 C.F.R. § 36.303(a) (public accommodations must take steps to ensure
individuals with disabilities are not "excluded, denied services, segregated, or otherwise treated
differently because of the absence of auxiliary aids and services"). Such auxiliary aids may include
notetakers, accessible electronic and information technology, or other devices and services necessary
to aid students with sensory, manual, or vocal disabilities. 28 C.F.R. §§ 36.303(b)(l)-(4). Aids or
services of a personal nature or for personal use need not be provided. 34 C.F.R. § 104.44(d)(2)
(recipients of federal funds "need not provide attendants, individually prescribed devices, readers
for personal use or study, or other devices or services of a personal nature"); 28 C.F.R. § 36.306
(public accommodations are not required to "provide its customers, clients, or participants with
personal devices, such as wheelchairs; individually prescribed devices, such as prescription
eyeglasses or hearing aids; or services of a personal nature including assistance in eating, toileting,
Further, specific aids and services need not be provided if doing so would
fundamentally alter the nature of the service or privilege offered, or if doing so would inflict an
undue burden. 28 C.F.R. § 36.303(a) (public accommodation need not take steps to provide
auxiliary aids and services if it "can demonstrate that taking those steps would fundamentally alter
PAGE 64 - OPINION AND ORDER
the nature of the ... services ... being offered or would result in an undue burden, i.e., significant
difficulty or expense").
Pacific moves for summary judgment on Counts 6, 7, and 8, arguing Breyer was never denied
a modification or auxiliary aid because she withdrew from Pacific during the interactive process
before accommodation was needed. (Motion, at 23-25.) Breyer refutes Pacific's argument, alleging
Pacific should have taken preemptive steps to investigate how to accommodate students with
disabilities in the Cognitive Assessment course. (Pl.'s Opp'n, at 38.) Specifically, Breyer argues
Pacific waited too long to engage in the interactive process, failed to utilize information available
to it through Dr. Cobble-Temple, the American Psychological Association, and its own faculty, and
failed to provide her an assistant for classroom use. (Id. at 38, 41--42.)
The court notes that Breyer' s response focuses only on Pacific's alleged failure to investigate
and Pacific's alleged failure to provide her with an assistant, otherwise neglecting to identify any
modifications Pacific failed to make to its policies, practices, or procedures. Though Breyer did not
address the failure to modify claim in her Response, the court can infer that claim seeks to challenge
Pacific's failure to modify the Cognitive Assessment course requirements. Even assuming that to
be the case, Breyer withdrew from Pacific when the Cognitive Assessment course was still months
away. Furthermore, the record demonstrates that Breyer was afforded every accommodation she
requested to facilitate her paiiicipation in her first semester classes, and she does not allege any
policy, practice, or procedure stood in her way. (July Richman Deel., Ex. 3, at 24-25.) Pacific thus
did not discriminate against Breyer by failing to modify a policy, practice, or procedure necessary
to afford Breyer meaningful access to the PsyD program.
Breyer' s failure to investigate claim fares no better.
PAGE 65 - OPINION AND ORDER
Though Breyer alleges Pacific
wrongfully delayed its engagement in the interactive process to determine how to accommodate her
until nearly seven months after she was admitted to the PsyD program, Pacific's duty to engage in
the interactive process is triggered when it has knowledge of a student's disability and
accommodation is desired. Vinson, 288 F.3d at 1154. The record shows that Breyer stated that she
might need an accommodation for the second semester Cognitive Assessment course when she met
withDrs. Clark and Arnaut on October 19, 2015. (2018 Breyer Dep. 230:13-22.) In response, Drs.
Clark and Arnaut created an action plan that outlined the various tasks to be completed to determine
appropriate accommodations for Breyer, including providing Breyer with videos of assessment
testing to demonstrate what is required, researching the policies of other schools with respect to
accommodating standardized assessment testing, gathering information about the accommodations
that have been utilized for other students in the past, and consulting faculty about what
accommodations would be allowable in the context of assessment testing. Thus, by the time Breyer
affirmatively requested an assistant on October 24, 2015, Pacific already had initiated the interactive
process and was actively fulfilling its duty to investigate. The Acts do not otherwise require Pacific
to unilaterally "take preemptive steps to investigate" months in advance, as Breyer suggests. (Pl.' s
Opp'n, at 38.)
Breyer also challenges Pacific's failure to "consult ... every resource available to it" to
determine how to best accommodate her in the Cognitive Assessment course. (Id.) Breyer again
takes issue with Pacific's failure to follow-up with Dr. Cobble-Temple, and complains that Pacific
did not utilize information available through the AP A or the collective knowledge of its own faculty
to determine appropriate accommodations. (Id.) But Breyer' s insistence that Pacific had a duty to
consult every existing resource available to it is misplaced. The cornerstone of an entity's duty to
PAGE 66 - OPINION AND ORDER
investigate under the Acts is its obligation to consult the individual in need of accommodation. See
Wong, 192 F.3d at 818 (noting the Acts create a duty to consult the individual with a disability to
determine appropriate accommodations); Bird, 303 F.3d at 1020 (explaining that educational
institutions must engage in a "fact-specific, individualized analysis of the disabled individual's
circumstances and the accommodations that might allow him [or her] to meet the program's
Beyond working directly with the individual, the Ninth Circuit has noted that
educational institutions must only consult "qualified experts as needed" to determine what
accommodations are necessary to facilitate the meaningful paiiicipation of an individual with a
disability. Wong, 192 F.3d at 818. Here, Drs. Clark and Arnaut consulted Breyer and developed an
action plan, which included providing Breyer with additional information to better understand what
she may need, exploring industry practices and the policies of other schools, and utilizing the
experience and expetiise of SPP faculty. There is nothing to suggest that these efforts would have
been insufficient to determine what accommodations would have been necessary under the
circumstances, and Pacific is not required to expand the substance and scope of its investigation
Finally, Breyer's claim that Pacific discriminated against her by failing to provide her
necessary auxiliary aids and services holds little weight. Breyer has provided no evidence that she
was denied the benefits of, excluded from participation in, or otherwise subjected to discrimination
in the PsyD program because of the absence of auxiliary aids or services, much less because she
lacked the services of an assistant. Indeed, Breyer withdrew from Pacific before such services may
have been needed to facilitate her participation in the Cognitive Assessment course. Moreover,
educational institutions are required to provide only accommodations that are necessary to enable
PAGE 67 - OPINION AND ORDER
an individual with disabilities to meet the standards of the program in question. Wong, 192 F.3d at
818. Breyer maintains she would not have needed any form of accommodation to complete the
Cognitive Assessment course, and therefore, an auxiliary aid or service was not necessary for her to
meet the standards of the PsyD program. (Breyer Deel. 111.)
Breyer has provided no evidence that Pacific failed to investigate reasonable
accommodations; failed to modify its policies, practices, and procedures; or failed to provide her
with necessary auxiliary aids or services. Further, there is no evidence that such failures denied her
the benefit of, excluded her participation in, or otherwise subjected her to discrimination in the PsyD
program. In fact, Pacific did not fail to reasonably accommodate Breyer because she withdrew from
the PsyD program before accommodations would have been necessary, assuming Breyer would have
needed accommodations at all. Pacific properly engaged in the interactive process when Breyer
indicated she might need accommodation for a class months in the future, and that process was
ongoing when she decided to withdraw from the PsyD program. Accordingly, no issues of material
fact exist as to Counts 6, 7, and 8.
Count 9: Hostile Educational Environment
Breyer alleges Pacific discriminated against her in violation of the Acts by "maintaining a
disability-based environment of hostility." (SAC
68.) The Ninth Circuit has yet to
determine whether hostile learning environment claims are cognizable under the Acts, and the issue
has had little traction in the district courts. See Garedakis v. Brentwood Union Sch. Dist., 756 Fed.
App'x 669, 671 (9th Cir. 2018) ("Assuming without deciding that the [hostile educational
environment] theory is cognizable in our circuit, that claim fails because the plaintiffs have not
shown the alleged abuse was 'by reason of or 'solely by reason of their disabilities"); see also
PAGE 68 - OPINION AND ORDER
Wormuth v. Lammersville Union Sch. Dist., 305 F. Supp. 3d 1108, 1127 n.5 (E.D. Cal. 2018)
(declining to recognize a claim for hostile learning environment under the Acts in the absence of
supp01iing authority within the Ninth Circuit). Breyer urges the court to recognize her hostile
learning environment claim, but offers little more than a case summary of Guckenberger v. Boston
University, 957 F. Supp. 306 (D. Mass. 1997), to support her request.
In Guckenberger, a group of students brought suit against Boston University, alleging, among
other things, that the University's president denied necessary accommodations for multiple learningdisabled students and made derogatory comments about students with learning disabilities in letters
(later published by major news outlets) and in public speeches. Id. at 312. Such conduct, the
students argued, created a hostile learning environment for students with learning disabilities in
violation of the Acts. Id at 313. Noting only one federal court appeared to have recognized such
a claim, the district court reviewed the statutory language of Title III and Section 504, and found it
to be "substantially similar" to that of Title IX of the Education Amendments of 1972, which
provided the statutory basis for hostile educational environment claims arising from episodes of
sexual harassment. Id. The district comi, finding "cases interpreting the analogous language and
policies of Title VII and Title IX" persuasive, determined a cause of action existed under the Acts
"when harassment based on a student's disability has 'the purpose or effect of umeasonably
interfering with [the] individual's performance or [of] creating an intimidating, hostile, or offense
environment." Id. at 314. The district court reasoned that its conclusion was "consistent with the
express congressional purpose in enacting the ADA to 'address the major areas of discrimination
faced day-to-day by people with disabilities."' Id. (quoting 42 U.S.C. § 12101(b) (ADA
congressional statement of findings and purposes)).
PAGE 69 - OPINION AND ORDER
Despite the Guckenberger court's reasoned analysis, few comis since then appear to have
adopted a similar position. See, e.g., Toma v. Univ. of Hawaii, 304 F. Supp. 3d 956, 965-66 (D.
Haw. 2018) (noting the Guckenberger court "conducted a thoughtful statutory analysis," but that its
decision "appears to be an outlier"); Sutherlin v. Ind. Sch. Dist. No. 40 of Nowata Cty, Okla., 960
F. Supp. 2d 1254, 1267 (N.D. Okla. 2013) (declining to recognize a hostile learning environment
claim where Guckenberger was the only authority cited by the plaintiff); Junhe Qui v. Univ. of
Cincinnati, Case No. l:18-cv-634, 2019 WL 2396664, at *5 (S.D. Ohio June 6, 2019) (noting that
no federal cases in the Sixth Circuit recognize a hostile learning environment claim, but determining,
arguendo, that plaintiff failed to plausibly suggest he was subjected to a hostile learning
environment); Barry as nextfi·iend of A.P. v. Cedar Rapids Cmty. Sch. Dist., No. Cl7-120-LTS,
2019 WL 1234330, at *15 n.9 (N.D. Iowa Mar. 15, 2019) (citing MP. es rel. K andD.P. v. Ind. Sch.
Dist. No. 721, 439 F.3d 865, 868 (8th Cir. 2006) (finding the Eighth Circuit neither endorses nor
forcloses hostile learning environment claims under Section 504); but see Lawton v. Success Acad.
Charter Sch., Inc., 323 F. Supp. 3d 353, 367 (E.D.N.Y. 2018) (agreeing "a hostile learning
environment is just as invidious as a hostile work environment," but finding the complaint "devoid
of the sharply-pointed, crudely-crafted, and frequently-launched slings and atTows that courts have
found sufficient to establish severe and pervasive harassment"). In the Ninth Circuit, only one
district comi has suggested a willingness to adopt the reasoning of Guckenberger. See Ticer v.
Young, No. 16-cv 02198-KA W, 2016 WL 4719272, at *7 (N.D. Cal. Sept. 9, 2016) (finding the
Guckenberger holding "persuasive," but determining the challenged conduct occmTed outside of the
statute of limitations). Because there is little authority within as well as outside the Ninth Circuit
to support the recognition of a hostile learning environment claim under the Acts, the court declines
PAGE 70 - OPINION AND ORDER
to recognize such a claim here.
Even assuming, arguendo, that a hostile learning environment claim is cognizable, Breyer' s
claim fails. To evaluate the merits of a hostile learning environment claim, the Guckenberger court
adopted the "flexible Title VII standards for establishing a hostile work environment claim[.]"
Guckenberger, 957 F. Supp. at 314 (citing Brown v. Hot, Sexy and Safer Prod., Inc., 68 F.3d 525,
540 (1st Cir. 1995)). Under the Title VII framework, Breyer must demonstrate: "(1) that she is a
member of a protected group, (2) that she has been subject to unwelcome harassment, (3) that the
harassment is sufficiently severe or pervasive that it alters the conditions of her education and creates
an abusive educational environment, and (5) that there is a basis for institutional liability." Id.
Harassment rises to the level of actionable, illegal discrimination only where the educational
environment is "permeated with 'discriminatory intimidation, ridicule, and insult."' Id (quoting
Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993)). Whether a given educational environment
is hostile is determined by considering the totality of the circumstances, particularly "the frequency
of the discriminatory conduct, its severity, whether the alleged conduct is 'physically threatening or
humiliating rather than a mere offensive utterance,' and whether it interferes with the plaintiffs
performance." Id. (quoting Brown, 68 F.3d at 540).
Breyer simply alleges, in conclusory fashion, that "[Pacific's] derogatory and patronizing
statements and questions; unequal treatment; consistent unwanted attempts to force unrequested
accommodations on plaintiff; persistent questioning of plaintiffs abilities based on speculations and
disability stereotypes; suggestions that she should pursue other careers; refusal to support her in
pursuing internships; and consistent microagressions" created a hostile learning environment that
was pervasive and severe. (PL 's Opp'n, at 32.) Breyer asserts this conduct constituted harassment,
PAGE 71 - OPINION AND ORDER
and ultimately caused her to fail two midterms and to withdraw from the PsyD program. (Id.) She
does not explain in any detail, however, the specific evidence in the record on which she relies, the
specific conduct at issue, or how such conduct constitutes harassment for the purpose of establishing
her claim. Moreover, she points to no evidence that suggests "discriminatory intimidation, ridicule,
and insult" pervaded her experience at Pacific. Accordingly, no issues of material fact exist with
respect to Count 9.
Count 10: Retaliation
Retaliation is prohibited under the Acts. See 42 U.S.C. § 12203(a) (deeming it unlawful to
"discriminate against any individual because such individual has opposed any act or practice made
unlawful by this chapter"); 34 C.F.R. § 104.61 (incorporating the anti-retaliation provision of Title
VI of the Civil Rights Act of1964); 34 C.F.R. § 100.7(e) (recipient of federal funds prohibited from
"intimidat[ing], threaten[ing], coerc[ing], or discriminat[ing] against any individual for the purpose
of interfering with any right or privilege ... because he has made a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this part"). Retaliation
claims arising under the ADA are evaluated using the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). T.B. ex rel. Brenneise v. San Diego
Unified Sch. Dist., 806 F.3d 451,473 (2015). Under that framework, a plaintiff must first establish
a prima facie claim of retaliation by demonstrating that (1) he or she was engaged in protected
activity; (2) he or she suffered an adverse action; and (3) a causal connection exists between the
protected activity and the adverse action. Id. (quoting Emeldi v. Univ. of Or., 673 F.3d 1218, 1223
(9th Cir. 2012); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). If a prima facie case is
established, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason
PAGE 72 - OPINION AND ORDER
for its conduct. Pardi v. Kaiser Found. Hosp., 389 F.3d 840, 849 (9th Cir. 2004). If such a reason
is articulated, the burden shifts back to the plaintiff to demonstrate the proffered reason is pretext
for a discriminatory motive. Id. Because the ADA and the Rehabilitation Act are interpreted in the
same manner, retaliation claims arising under the Rehabilitation Act are analyzed under the same
rubric. See Douglas v. Riverside Cty. Office ofEduc., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002) (case
law interpreting the Acts are "interchangeable); see also Lee v. Natomas Unified Sch. Dist., 93 F.
Supp. 3d 1160, 1167 (E.D. Cal 2015) (noting the burden-shifting analysis "applies equally to
retaliation claims ... herein brought under the ADA or Section 504").
Breyer alleges Pacific retaliated against her after she complained to SPP faculty that Pacific
had unlawfully discriminated against her. (Pl.'s Opp'n, at 43-44.) Instead of addressing her
complaints, Breyer contends Pacific "doubled down on its discriminatory conduct," utilizing several
meetings Breyer requested to discuss her concerns as opportunities "to question [her] abilities[.]"
(Id. at 44.) Pacific does not contest Breyer's assertion that she engaged in protected activity when
she complained to Pacific's faculty about discrimination. The parties disagree, however, as to
whether the challenged conduct constitutes an "adverse action," and whether a causal connection
exists between Breyer' s complaints and the conduct alleged. Pacific thus argues Breyer cannot
establish a prima facie case of retaliation, but insists that even if she could, she offers no evidence
to rebut Pacific's legitimate, nondiscriminatory reasons for engaging in the conversations at issue.
(Def.'s Reply, at 22-23.)
The Ninth Circuit has taken a broad view of what may constitute an adverse action. See, e.g.,
Ray, 217 F .3d at 1240 (noting "a wide array of disadvantageous changes in the workplace" constitute
adverse actions, including a lateral transfer, undeserved performance ratings, exclusion from
PAGE 73 - OPINION AND ORDER
meetings and seminars, a more burdensome work schedule, and denial of secretarial support).
However, a defendant's conduct does not necessarily amount to an adverse action simply because
it affects an individual who engaged in protected activity. Brooks v. City ofSan Mateo, 229 F.3d
917, 928 (9th Cir. 2000). Rather, an adverse action is one that is "reasonably likely to deter
[individuals] from engaging in protected activity." Pardi, 389 F.3d at 850; see also Burlington N
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (concluding an adverse action is cognizable
only if it is "harmful to the point that [it] could well dissuade a reasonable [individual] from making
or supp01iing a charge of discrimination"). Therefore, to amount to an adverse action under the
Acts, the challenged action must be "nontrivial." Brooks, 229 F.3d at 928. (citing Ray, 217 F.3d at
1243); see also Strother v. California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996)
(acknowledging "mere ostracisim in the workplace" does not amount to an adverse action); see also,
e.g., Waltersv. Walden University, LLC, No. 15-5651 RJB, 2015 WL6550754, at *10 (W.D. Wash.
Oct. 28, 2015) (doctoral student not subjected to an adverse action when various professors criticized
her work product, refused to accept certain assignments, and cautioned her to maintain an air of
professionalism in her communications, because such actions were trivial).
Here, Breyer insists she was subjected to an adverse action when, during meetings she
requested to complain of her discriminatory treatment, Pacific turned the conversation to "whether
the program was the right 'fit' for [her], whether she could complete minimalistic physical p01iions
of the program, whether she would be able to obtain internships several years down the road, and
whether she should explore other career paths." (Pl. 's Opp'n, at 44.) Breyer alleges these meetings
"ultimately gave [Pacific] the prime opportunities to continue to make her disability a roadblock to
success and to justify its original behavior with further criticism, reservations, uncertainties, and
PAGE 74 - OPINION AND ORDER
speculations." (Id.) Breyer argues that such conduct "is more likely than not sufficient to deter an
ordinary person from exercising her rights." (Id.)
The record demonstrates, however, that Breyer attended a total of six meetings with SPP
faculty after she began attending Pacific, of which she requested only three. Breyer requested the
first meeting, which took place on September 14, 2015 with Drs. Elder, Tasker, and Brems, to lodge
complaints about the March 12 phone call to discuss the essential functions during the admissions
process. (2017 Breyer Dep. 111 :19-112:3, 112:22-113:10; Elder Dep. 175:1-13, 175:22-176:13;
Breyer discussed her concerns regarding the phone call at length, and later
acknowledged that all involved "seemed to be open and ... mindful about what [she] was saying"
during that meeting. (2017 Breyer Dep. 119:4-8.) Breyer requested the second meeting with Dr.
Clark for the purpose of discussing research ideas for a class assignment. (2018 Breyer Dep.
198:5-24.) During that meeting, Drs. Clark and TaskerreviewedBreyer's listofconcerns point-bypoint, and offered to intervene on Breyer's behalf to address the situation with Dr. Tram. (Id.
170:3-12, 210:20-211 :3.) Breyer requested the third meeting specifically to "have an open and
honest discussion about [her] abilities." (Richman Deel., Ex. 1, at 98-99.) On October 19, 2015,
Breyer met with Drs. Clark and Arnaut to discuss the remaining program requirements to determine
whether "completing [the PsyD] program [was] realistic for her." (Stephenson Deel., Ex. K, at 91.)
Drs. Clark and Arnaut reviewed the remaining program requirements -
assessment testing, practicums, and the internship requirement- explained how the PsyD program
fit with Breyer' s stated career goals, and created an action plan to determine accommodations for
the upcoming Cognitive Assessment course. (Stephenson Deel., Ex. K, at 91; 2018 Breyer Dep.
228:14-229:4, 231:16-232:18; 2017 ClarkDep. 47:7-48:3.)
PAGE 75 - OPINION AND ORDER
Thus, despite Breyer's allegations to the contrary, the record reflects that SPP faculty were
receptive and responsive to Breyer' s complaints during every meeting she requested, and did not
simply ignore her concerns in favor of questioning her abilities. Though she takes issue with
discussions about the PsyD program requirements and how she might fmiher her career goals, Breyer
herself explicitly sought to discuss those topics in the October 19, 2015 meeting with Drs. Clark and
Breyer also appears to support her allegations by citing Dr. Li's conduct during a meeting that
occurred on October 12, 2015, but the record shows Breyer did not request that meeting, much less
request it for the purpose oflodging complaints of discrimination. (Li Dep. 80: 10-20.) Even if she
had, however, Breyer concedes that her concerns were discussed during that meeting. (2018 Breyer
Dep. 216:7-12.) Moreover, in direct response to Breyer's complaint that the PsyD program should
"take note of how many [ADA] laws [it] has broken since March," Dr. Brems urged Breyer to file
a written complaint with the Dean of Students, Dean Perkins. (July Richman Deel., Ex. 1, at 81.)
Dr. Brems explained that a written complaint would trigger an investigation of the discriminatmy
conduct alleged, but Breyer did not file a complaint or otherwise contact Dean Perkins. Thus, even
viewing the facts in the light most favorable to Breyer, the challenged actions are trivial at most,
especially in light of the Breyer's decision to forego writing a complaint to the Dean of Students to
trigger a fo1mal investigation of her charges. Breyer therefore was not subject to an adverse action,
and consequently, she cannot establish a prima facie case of retaliation under the Acts.
But, even assuming for the sake of argument that a prima facie case of retaliation could be
established here, Pacific explains that it typically engages in the types of conversations complained
of when advising students in the PsyD program, particularly when a student demonstrates a lack of
PAGE 76 - OPINION AND ORDER
knowledge or a fundamental misunderstanding concerning specific aspects ofthe program. (See e.g.,
Elder Dep. 125 :24-126: 19 (confirming that Pacific has conversations with every student clarifying
its lack of control over the internship process); Brems Dep. 56:9-24 (noting Breyer's demonstrated
misunderstanding of how students are matched with an internship site warranted an explanation of
how the placement process works); Arnaut Dep. 115:13-118:22 (explaining that several things,
including the internship requirement, the role of a forensic psychologist, and the options available
to Breyer in the adult psychology track, were discussed during the October 12, 2015 meeting to
clarify Breyer' s misconceptions about those subjects); Li Dep. 81: 11-20 (explaining that whether
the PsyD program is the right "fit" for a given individual is "a common question to talk to students
about").) Breyer has provided no evidence to suggest that Pacific's proffered reason for engaging
in the challenged conduct is pretext to mask a discriminatory motive.
For the reasons explained above, Pacific did not retaliate against Breyer in response to her
complaints that she was subjected to discriminat01ytreatment. Thus, no issues of material fact exist
with respect to Count 10.
Pacific did not exclude or otherwise deny Breyer the benefit of the PsyD program, and no
issue of material fact exists with respect to the ten counts of discrimination she alleges here. 16
Though Breyer finds many aspects of Pacific's conduct objectionable, the challenged conduct does
not amount to discrimination under the ADA or Section 504. Accordingly, summary judgment as
to Breyer's first and second claims for relief is GRANTED in favor of Pacific.
Consequently, Breyer also cannot establish that Pacific acted with deliberate indifference
to entitle her to compensatory damages under Section 504.
PAGE 77 - OPINION AND ORDER
Breach of Contract
Breyer' s third claim for relief is for breach of contract. Specifically, Breyer alleges Pacific
promised her "that it would adhere to its nondiscrimination policy," and manifested an intent to be
bound by that promise by including the policy in a variety of publications provided to her, such as
"its Academic Catalog, SPP Student Handbook, Faculty and Governance Handbook, Leaming
Supp01i Services information and publications, Business Office Student Contract, Clinical Training
Contract, [and] on its website[.]" (SAC ,r,r 74, 75.) Breyer alleges Pacific breached the contract by
discriminating against her in violation of "its own policies of non-discrimination." (Id.
Pacific moves for summary judgment, arguing no contract existed between the parties
because Pacific explicitly disclaimed its intention to be bound by any of its regulations, policies, or
procedures. (Motion, at 29-30.). Pacific fmiher argues that, even if a valid contract existed, there
was no breach because it did not provide Breyer an unequal opportunity to participate in the PsyD
program or otherwise discriminate against her in violation of its nondiscrimination policy. (Id. at
30-31.) Breyer refutes Pacific's arguments, and contends the disclaimer at issue should not be given
effect. (Pl.'s Opp'n, at 46-48.)
"The existence of an enforceable contract is an essential element to a claim for breach of
contract." Gibson v. Walden Univ., LLC, 66 F. Supp. 3d 1322, 1324 (D. Or. 2014) (citing Fort
Vancouver Broadcasting Corp. V Fouce Amusement Enters., 933 F.2d 1013 (9th Cir. 1991)). A
contractual relationship is defined by a promise given in exchange for consideration. Corbitt v.
Salem Gas Light Co., 6 Or. 405, 406 (Or. 1877). Under Oregon law, "a student and a private
university may have a contractual relationship based on the terms contained in publications that the
university provides to the student." Dauven v. George Fox Univ., No. CV. 09-305-PK, 2010 WL
PAGE 78 - OPINION AND ORDER
6089077, at *16 (D. Or. Dec. 3, 2010) (citing Tate v. N Pacific Coll., 70 Or. 160, 165, 140 P. 743,
745 (1914)); see also Birdv. Lewis & Clark Coll., 104 F. Supp. 2d 1271, 1276 (D. Or. 2000) (noting
that "[t]he basic legal relationship between a student and a private university or College is
contractual in nature," and that "[t]he catalogs, bulletins, circulars, and regulations of the institution
made available to the matriculant became a part of the contract"). Whether such materials are
considered part of a contract between an academic institution and a student is dependent on the
specific facts of the case. Vejo v. Portland Pub. Schs., 204 F. Supp. 3d 1149, 1175 (D. Or. 2016),
rev 'din part on different grounds, 737 Fed. App'x 309 (9th Cir. 2018) (citing Gibson, 66 F. Supp.
3d at 1324-25). "The relevant inquiry is whether a party's 'communications and overt acts' suggest
it 'manifested assent' to be bound." Id. (quoting Kabil Devs. Corp. v. Mignot, 279 Or. 151, 566 P .2d
505, 508-09 (1977)).
Courts, however, have declined to find a valid contract exists where a student handbook or
other publication expressly disclaims the formation of a contract or an intent to be bound. See
Gibson, 66 F. Supp. 3d at 1325 (finding no contract existed where student handbook included a
disclaimer that "[n]either the provisions of this document, nor the acceptance of students through
registration and enrollment in the university, constitutes a contract or an offer of a contract"); Carr
v. Bd. ofRegents of Univ. Sys. ofGa., 249 Fed. App'x 146, 151 (11th Cir. 2007)(findingno contract
existed where academic catalog contained a statement that it was for "'informational purposes only
and should not be construed as the basis of a contract between the student and [the Board]"'); but
see Vejo, 204 F. Supp. 3d at 1177 (finding disclaimer that reserved college's right to change fees,
admission and graduation requirements, and regulations affecting the student body did not absolve
contractual duty to uphold nondiscrimination laws because a reasonable juror could conclude the
PAGE 79 - OPINION AND ORDER
college did not retain the right "to rescind its nondiscrimination promise and begin making
discriminatory decisions based on a student's race, national origin, or religion").
Here, Breyer alleges Pacific made a promise to abide by its nondiscrimination policy, a
promise she accepted by matriculating in the SPP and providing consideration in the form of tuition
for her attendance. (SAC ,r ,r 74-77.) Breyer claims Pacific communicated this promise in a number
of publications provided to her, including the 2015-2016 Academic Catalog. (SAC ,r 75.) But as
Pacific points out, the Academic Catalog contained the following disclaimer:
Pacific University has made reasonable efforts to ensure that the information
contained in the catalog is accurate at the time of publication, but reserves the right
to change the catalog or any University requirements, regulations, policies or
procedures. This includes, but is not limited to, the right to discontinue courses,
change requirements for admission and graduation, or adjust fees ... The information
in this catalog, as well as any other regulations, policies, or procedures of the
University, is for informational purposes only and does not constitute an agreement
or contract between Pacific University and students, staff, or faculty.
(Clark Deel., Ex. 2 (emphasis added).) Pacific argues that, by its terms, the disclaimer included in
the Academic Catalogue expressly communicated its intention that any statements or information
included in the Academic Catalog, or in "any other regulations, policies, or procedures of the
University," did not constitute the terms of any contract or agreement.
Here, Pacific included a notice that expressly disclaimed any intention to be bound and
explicitly denied that the statements and information contained in the Academic Catalog, or its
regulations, policies, and procedures, supported the formation of a contract between the university
and its students. Unlike the disclaimer in Vejo which simply reserved the college's right to change
its fees, requirements, and decisions affecting the student body but did not reserve its right to rescind
its promise to abide by nondiscrimination laws, Pacific's disclaimer specifically communicates its
PAGE 80 - OPINION AND ORDER
intention that it will not be bound.
Breyer argues, however, that the disclaimer should not be given effect because it was not
conspicuous as required by Oregon law. (Pl. 's Opp'n, at 47-48.) Specifically, she contends Pacific
"buried" the disclaimer language in one paragraph in a document that is 530 pages long, without
offsetting type or other attention-grabbing devices, likely because Pacific "intended to be bound" by
the nondiscrimination policy. (Id. at 48.) Under Oregon law, a disclaimer is conspicuous if it is "so
written, displayed, or presented that a reasonable person against which it is to operate ought to have
noticed it." OR. REV. STAT.§ 71.2010(2)0). Whether a term is conspicuous "is a decision for the
Conspicuous terms include those with "[a] heading ... in contrasting type, font or color to
the surrounding text of the same or lesser size." OR. REV. STAT.§ 71.2010(2)G)(A). Here, the
disclaiming language at issue was set apaii in its own paragraph under a bolded heading of larger
type marked "Disclaimers." (Clark Deel., Ex. 2.) Contrary to Breyer's asse1iion that the disclaimer
was "buried" in the 530-page Academic Catalog, the disclaimer was on the second page,
immediately above the nondiscrimination policy purportedly constituting the terms of the contract
to be enforced.
A reasonable person seeking to enforce Pacific's promise to adhere to the
nondiscrimination policy would have noticed the paragraph immediately above it marked
"Disclaimers." The comi thus concludes the disclaimer in the Academic Catalog was conspicuous,
and therefore is enforceable. Accordingly, no contract existed between the parties in this case.
But even if an enforceable contract existed, as explained supra, Breyer has not shown that
Pacific discriminated against her or provided her an unequal opportunity to paiiicipate in the SPP.
No issue of material fact exists with respect to Breyer's breach of contract claim, and Pacific's
PAGE 81 - OPINION AND ORDER
request for summary judgment is GRANTED.
Breyer' s fourth claim for relief alleges that even if no valid contract existed, she reasonably
relied on Pacific Pacific's promise to adhere to its nondiscrimination policy, to her detriment. (SAC
Pacific moves for summary judgment, arguing Pacific did not discriminate against
Breyer, and even if it did, she cannot demonstrate that she relied on the nondiscrimination policy or
any other promise in deciding to attend Pacific. (Motion, at 32-33.) Breyer responds that questions
of material fact exist with respect to reliance, citing her review of Pacific's website, the
nondiscrimination policy, "other satements regarding diversity, and promises that [Pacific] would
not discriminate against [her,]" which were relied on "in making her decision to accept the offer of
admission" to the SPP. (Pl. 's Opp'n, at 50.)
Oregon has adopted the Restatement's formulation of promissory estoppel:
A promise which the promisor should reasonably expect to induce action or
forbearance on the part of the pro mi see or a third person and which does induce such
action or forbearance is binding if injustice can be avoided only by enforcement of
the promise. The remedy granted for breach be limited as justice requires.
Cocchira v. Lithia Motors, Inc., 353 Or. 282,292,297 P.3d 1277, 1283 (2013) (en bane) (quoting
RESTATEMENT (SECOND) OF CONTRACTS § 90(1) (1981)). Thus, a plaintiff seeking to invoke
promissory estoppel must demonstrate the existence of "(l) a promise; (2) which the promisor, as
a reasonable person, could foresee would induce conduct of the kind that occu1Ted; (3) actual
reliance on the promise; and (4) a substantial change in position by the party seeking to enforce the
promise." Hill v. Mayers, 104 Or. App. 629, 631, 802 P.2d 694, 695 n.2 (1990) (citing Bixler v.
First National Bank, 49 Or. App. 195, 199, 619 P.2d 895 (1980)).
PAGE 82 - OPINION AND ORDER
The record demonstrates that before applying to Pacific, Breyer examined the PsyD portion
of Pacific's website, and reviewed information about its faculty, coursework, diversity and inclusion
within the PsyD program, and licensing requirements. (2017 Breyer Dep. 78:9-80:11.) Breyer
admitted in her deposition testimony that she decided to apply to Pacific because it had a forensic
psychology program and because she had friends who lived in Oregon. (Id. 77 :22-25 .) After Pacific
extended her an offer of admission, Breyer testified that she once again reviewed Pacific's website
and spoke to several friends and colleagues "regarding [her] feelings sun-ounding the acceptance,
and [that] this was truly a once-in-a-lifetime opportunity[.]" (2018 Breyer Dep. 105:19-107:24.)
Breyer's testimony also revealed that she could not recall any promises made to her before deciding
to accept admission to Pacific, remembering only that the word "diversity" was used frequently
during Interview Day. (Id. 162:23-165:23.) Thus, as Pacific con-ectly points out, there is no
evidence in the record to suggest Breyer relied on Pacific's nondiscrimination policy or any other
alleged promise in deciding to apply to or attend Pacific. Further, as established above, Pacific did
not discriminate or otherwise fail to provide Breyer with an equal opportunity to participate in the
PsyD program. Accordingly, summary judgment as to Breyer' s fourth claim for reliefis GRANTED
in favor of Pacific.
For the foregoing reasons, Pacific's Motion for Summary Judgment (ECF No. 63) is
GRANTED in its entirety.
DATEDthis _ _ _dayofMarch,2020.
t , \6 rc=
United/ S1tates Magistrate Judge
PAGE 83 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?