Ewbank v. Emerick et al

Filing 187

Opinion and Order signed on 8/11/2023 by Magistrate Judge Mustafa T. Kasubhai: Defendants' motion for summary judgment (ECF No. 153 ) is GRANTED IN PART. Plaintiff's motion for summary judgment (ECF No. 175 ) is DENIED. Plaintiff&# 039;s motion objecting "to the failure of the Court['s] pro bono program" (ECF No. 167 ) is DENIED. Plaintiff's motion to stay the case pending Plaintiff's retention of counsel (ECF No. 179 ) is DENIED as moot. With the exception of his retaliation claim under the ADA, Plaintiff's claims are dismissed with prejudice. (jk)

Case 6:17-cv-00187-MK

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UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION

ROBERT DRAKE EWBANK,

Case No. 6:17-cv-00187-MK

Plaintiff,

OPINION AND ORDER

vs.
JEFF W. EMRICK et al.,

Defendants.
_________________________________________
KASUBHAI, United States Magistrate Judge:
Plaintiff R. Drake Ewbank (“Plaintiff”) filed this action against Defendants Jeff Emrick,
Nicole Corbin, Robert Lee, Pamela Martin, Lynn Saxton, Darcy Strahan, the State of Oregon, the
Oregon Health Authority, and the Oregon Health Authority Services Division as the Oregon
Addictions and Mental Health Division (collectively, “Defendants”) in 2017, alleging several

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claims including violations of the Americans with Disabilities Act (“ADA”). Before the Court is
Defendants’ motion for summary judgment (ECF No. 153). Plaintiff filed a response (ECF No.
175) that also contains a motion for summary judgment on all of Plaintiff’s federal claims, a
motion (ECF No. 167) apparently chastising the Court’s pro bono program for not providing
Plaintiff adequate representation, and a motion to stay the case (ECF No. 179) pending Plaintiff’s
retention of counsel. For the reasons below, Defendants’ motion is granted in part and denied in
part. Plaintiff’s motions are denied.
PROCEDURAL BACKGROUND
Plaintiff filed this action in 2017 alleging a number of claims including discrimination
under Title II of the Americans with Disabilities Act (“ADA”). After numerous revisions, this
Court dismissed all of Plaintiff’s claims with prejudice. ECF No. 84. The Ninth Circuit reversed,
finding that Plaintiff could amend his complaint to state a claim under the ADA. Plaintiff did not
appeal, and the Ninth Circuit did not disturb, the dismissal of Plaintiff’s non-ADA claims with
prejudice. ECF No. 91. In a Seventh Amended Complaint (SAC), Plaintiff re-plead his ADA
claims, as well as additional claims which had been dismissed with prejudice, on February 1,
2022. ECF No. 116. Defendants filed their motion for summary judgment on May 19, 2023.
BACKGROUND
In 2015, Plaintiff was made co-chair of the Addictions and Mental Health Planning and
Advisory Council (“AMHPAC”) Housing/Olmstead Subcommittee. A longtime advocate within
the consumer, survivor, and ex-patient (“C/S/X”) movement, which advocates for the elevation
and inclusion of consumers and survivors of psychiatric (mis)treatment in mental health
research, policy, and practice, Plaintiff was also a member of the Oregon Mental Health
Consumer Advisory Council (“OCAC”) since 2013. SAC at ¶ 53. Per statutory definition,

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OCAC’s membership is entirely comprised of individuals with psychiatric disabilities. Id. at ¶
48. AMHPAC, on the other hand, is required to include a minimum of 20 percent C/S/X or
disabled members. Id. These volunteer committees are run by Oregon Health Authority (“OHA”)
and help advise OHA on matters related to the State’s treatment of persons with disabilities.
After his appointment as co-chair of the AMHPAC subcommittee, some of Plaintiff’s
behaviors were quickly flagged by other subcommittee members as rude and disruptive. OHA
staff were informed of this issue and attempted to coach Plaintiff on how to be a better co-chair.
ECF No. 153 at 4. Despite these efforts, Plaintiff continued to disparage other committee
members and OHA staff. Plaintiff was also disruptive during an invited presentation by Cissie
Bollinger, and subsequently acknowledged his behavior in emails apologizing for the incident,
which Plaintiff attributed to a “common misunderstanding.” Id. at 5. Plaintiff’s behavior
attracted attention outside OHA, and AMHPAC subcommittee member Julie Britton raised
concerns to Defendants in an email threatening to stop attending subcommittee meetings. Id. at
5-6. Subcommittee member Kathleen Nunley also threated to leave the committee if Plaintiff’s
behavior was not addressed. Id. at 6.
OHA staff, including Rick Wilcox, Darcy Strahan, and Jackie Fabrick, conferred to
determine an appropriate remedy for the situation. On June 1, 2015, a meeting was held with
Plaintiff to address issues raised by other committee members and concerned stakeholders.
Following the meeting, Plaintiff voluntarily resigned as co-chair. In an email sent the following
day, however, Plaintiff continued to disparage OHA staff. Defendants decided to remove
Plaintiff from the committees.
When Plaintiff applied to rejoin OCAC, Defendants exercised OHA’s statutory discretion
to deny Plaintiff’s applications. Plaintiff was informed of the decision not to place him back on

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OCAC on November 6, 2015. Id. ¶¶ 7-8, Ex. 2. Plaintiff responded that he believed this decision
was based on the “lack of a reasonable accommodation and/or denied participation on other
impermissible premises -- unrelated to any objective criteria or unfortunately, unrelated to any
objective OHA inquiry -- which was requested by numerous named and unnamed employees
who were aware of the situations involved.” Id. Plaintiff was denied reentry to the committees,
and this action followed.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute
as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,
Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is
such that a reasonable jury could return a verdict for the nonmoving party determines the
authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the
absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings
and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all
reasonable doubts as to the existence of genuine issues of material fact should be resolved
against the moving party; and (2) all inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

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DISCUSSION
Defendants argue that they are each entitled to summary judgment on Plaintiff’s claims
under Title II of the ADA; Plaintiff’s retaliation claim; and Plaintiff’s § 1983 claims. Plaintiff’s
response also states, without argument, that he is entitled to summary judgment on his claims.
ECF No. 175 at 31. For the reasons below, Defendants’ motion is granted in part and denied in
part. Plaintiff’s motion is denied.
I.

Title II Claim
Defendants argue that they are entitled to summary judgment on Plaintiff’s claim under

Title II of the ADA. Title II of the ADA (42 U.SC. § 12101 et seq.) provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in
or denied the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. To establish a violation of Title II of the
ADA, a plaintiff must show that (1)[ ]he is a qualified individual with a disability; (2)[ ]he was
excluded from participation in or otherwise discriminated against with regard to a public entity's
services, programs, or activities, and (3) such exclusion or discrimination was by reason of [his]
disability. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (citing Weinreich v. Los
Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997)). Defendants argue that
Plaintiff’s Title II claim fails because (1) Defendants did not fail to accommodate Plaintiff’s
disability, and (2) Defendants’ actions were not by reason of Plaintiff’s disability.
A. Failure to Accommodate Plaintiff’s Disability
Plaintiff argues that Defendants failed to provide reasonable accommodation for his
disability, in violation of the ADA. Specifically, Plaintiff’s SAC alleges that Defendants were
“put on notice of the need for accommodation and of rights being violated” via a letter from Bob

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Joondeph, longtime Executive Director of Disability Rights Oregon, dated July 8, 2015. SAC at
¶ 185, citing ECF No. 116-8. In that letter, Mr. Joondeph makes a general statement of the
obligation to provide reasonable accommodations under the ADA but does not indicate (1) that
Plaintiff suffers from a disability; or (2) what would constitute a reasonable accommodation for
that disability. See id. Similarly, in Plaintiff’s letter opposing the denial of his application to
rejoin OCAC, he complains of a lack of reasonable accommodation but does not indicate either
that he suffers from a disability or offer any indication of what would constitute a reasonable
accommodation. On this record, the Court cannot conclude that Plaintiff was denied a reasonable
accommodation for his alleged disability.
B. Defendants’ Actions
While Plaintiff has provided evidence that he is a qualified individual with a disability
and that he was excluded from a public entity’s programs or activities, Title II requires an
additional showing that such exclusion was “by reason of [his] disability.” Lovell, 303 F.3d at
1052. Here, while Plaintiff alleges in the SAC that he suffers from PTSD, the record is bereft of
any evidence that Plaintiff communicated this diagnosis or its disabling limitations to
Defendants. There is also no evidence that Plaintiff requested any specific accommodations to
compensate for his alleged disability. ECF No. 153 at 29-30. Aside from conclusory allegations
in the SAC, Plaintiff has not provided any evidence to raise an issue of fact that Defendants were
aware that Plaintiff is disabled, other than the fact that Plaintiff was once a member of OCAC.
Plaintiff now argues that Defendants’ response to his disruptive behavior was in fact a
discriminatory response to a manifestation of his disability. ECF No. 167. However, Plaintiff’s
own allegations regarding his disability bar any reasonable inference that Defendants’ actions

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were made by reason of Plaintiff’s disability. Addressing his disability and its manifestations,
Plaintiff alleges in the Seventh Amended Complaint:
Though complex and impairing … [Plaintiff’s] disabling condition is not such that his
disability creates extreme or overt behaviors, nor renders him unable to conduct himself
calmly and responsibly, make judgments, carry on reasoned conversations, engage in
analytical and otherwise civilized social discourse, and advocate in an organized and
logically consistent manner … Plaintiff did and does not behave and/or communicate
differently than the population of undiagnosed individuals.
SAC at ¶¶ 31, 33 (emphasis added). Plaintiff’s allegations thus rule out any factual question as to
whether Plaintiff’s disruptive behavior was due to his alleged disability. On this record, there is
no evidence that (1) Plaintiff’s disruptive behavior was caused by his alleged disability or (2)
that Defendants’ responses to Plaintiff’s performance and behavior as co-chair of AMHPAC
were “by reason of” Plaintiff’s disability. On this record, Plaintiff’s Title II claim fails as a
matter of law because there is no genuine issue of material fact as to whether any exclusion or
adverse action Plaintiff suffered was “by reason of [his] disability.” See Lovell, 303 F.3d at 1052.
II.

Retaliation Claim
Plaintiff’s Seventh Amended Complaint also appears to allege a Title V claim of

retaliation under the ADA, contending that Defendants removed Plaintiff from OCAC and
AMHPAC and refused to reinstate him because he complained about OHA policies and
advocated for the disabled. Defendants argue that Plaintiff’s retaliation claim fails as a matter of
law because (1) Plaintiff cannot make out a prima facie case showing a causal link between his
request or complaint and his removal from the committees; and (2) Defendants had a legitimate
nondiscriminatory reason for removing and then refusing to reinstate Plaintiff to the committees.
A. Prima Facie Case of Retaliation
In the absence of direct evidence of retaliation, a claimant may rely on the burdenshifting framework used for proving discrimination claims under Title VII as articulated

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in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Barnett v. U.S. Air, Inc.,
228 F.3d 1105, 1121 (9th Cir. 2000) (en banc) (adopting Title VII framework to analyze ADA
retaliation claim). Under the McDonnell Douglas burden-shifting framework, the claimant must
first establish a prima facie case of retaliation. The burden then shifts to the defendant to set forth
a legitimate, non-retaliatory reason for the actions taken. If the defendant does so, the plaintiff
must show that the defendant’s proffered reason is a pretext for retaliation. See McDonnell
Douglas, 411 U.S. at 802–04.
To state a prima facie case of retaliation under the ADA, a claimant must show that (1) he
engaged in protected activity; (2) he suffered a materially adverse employment action; and (3)
there exists a causal connection between the protected activity and the adverse employment
action. See Pardi v. Kaiser Found. Hosp., 389 F.3d 840, 849 (9th Cir. 2004). Here, Plaintiff has
alleged that he engaged in protected activity by criticizing OHA staff for their failure to
incorporate and support peer workers in State mental health services, and attempting to redirect
committee meetings to address issues about inclusion and peer participation. Plaintiff has also
shown – and Defendants do not challenge – that he suffered an adverse action in the rejection of
his applications to rejoin OCAC and AMHPAC. Finally, Plaintiff has provided evidence to
support an inference that Plaintiff was removed and later denied re-entry to OCAC and
AMHPAC because he opposed acts or practices made unlawful by the ADA. Specifically,
Plaintiff has provided evidence to support an inference that his advocacy for peer inclusion
within mental health services for the mental health disabled population was a but-for cause of
Defendants’ adverse actions. See SAC ¶¶ 61-64. Plaintiff has therefore stated a prima facie case
of retaliation under the ADA. See Brooks v. Capistrano Unified Sch. Dist., 1 F.Supp.3d 1029,
1035-36 (C.D. Cal. 2014).

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B. Legitimate, Nondiscriminatory Reason
Once a claimant has made out a prima facie case of retaliation, the burden shifts to the
defendants to show a legitimate, non-retaliatory reason for the challenged action. McDonnell
Douglas, 411 U.S. at 802-04. Defendants argue that any adverse actions against Plaintiff were
made for non-discriminatory reasons: that Plaintiff was ineffective in his job as co-chair of the
AMHPAC Housing/Olmstead Subcommittee and was continually rude or disruptive to OHA
staff and other committee members. Defendants have therefore met their burden to show a
legitimate, non-retaliatory reason which can be defeated by a showing of pretext. Id. at 802-04;
Brooks, 1F.Supp.3d at 1038.
To defeat summary judgment with a showing of pretext, a claimant must demonstrate
that: (1) the defendant’s proffered reason is unworthy of credence; or (2) retaliation was the more
likely motivation. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062–63 (9th Cir.
2002). Here, viewing the facts in the light most favorable to Plaintiff, Plaintiff has provided
sufficient evidence to support a reasonable inference that Defendants’ proffered reasons are
unworthy of credence. A reasonable factfinder could conclude from the record that Plaintiff’s
opposition to Defendants’ exclusion of peer support workers from OHA facilities and services,
while vehement and disruptive, was the underlying cause of Plaintiff’s rejection from the OCAC
and OMHPAC committees. There is evidence in the record to suggest that Plaintiff’s allegedly
disruptive behavior was, in fact, advocacy designed to oppose actions by Defendants that
Plaintiff believed to be contrary to the ADA and to federal and state laws. See SAC at ¶ 64.
Because there is a genuine issue of fact as to whether Defendants removed and refused to
readmit Plaintiff from OCAC and OMHPAC because of his vocal opposition to OHA policies,
Defendants’ motion for summary judgment on Plaintiff’s retaliation claim is denied.

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III.

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Remaining Claims
Defendants also argue that Plaintiff’s Second, Third, and Fourth Claims are barred by

claim preclusion. Claim preclusion bars litigation in a subsequent action of any claims that were
raised or could have been raised in a prior action. Western Radio Servs. Co. v. Glickman, 123
F.3d 1189, 1192 (9th Cir. 1997). The doctrine is applicable whenever there is “(1) an identity of
claims, (2) a final judgment on the merits, and (3) identity or privity between parties.” Id. “The
phrase ‘final judgment on the merits’ is often used interchangeably with ‘dismissal with
prejudice.’” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (2002).
In its order reversing and remanding this Court’s dismissal of Plaintiff’s ADA claim, the
Ninth Circuit noted that “Ewbank does not appeal the district court’s dismissal of his other
claims.” ECF No. 91 at 1-2. In his Response brief, Plaintiff also notes that “[t]he alleged facts in
the [SAC] are substantially the same as the events specified in the earlier iterations” of his
amended complaints. ECF No. 167-1 at 9. Therefore, Plaintiff’s additional SAC claims arise out
of the “same transactional nucleus of facts” as his previous complaints. Owens v. Kaiser
Foundation Health Plan, Inc. 244 F.3d 708, 714 (9th Cir. 2001) (There is an identity of claims
when the two actions arise out of the “same transactional nucleus of facts”). On this record, all of
Plaintiff’s claims other than his claims made under the ADA remain dismissed with prejudice
and are barred by claim preclusion. See ECF No. 85.
CONCLUSION
For the reasons above, Defendants’ motion for summary judgment (ECF No. 153) is
GRANTED IN PART. Plaintiff’s motion for summary judgment (ECF No. 175) is DENIED.
Plaintiff’s motion objecting “to the failure of the Court[’s] pro bono program” (ECF No. 167) is
DENIED. Plaintiff’s motion to stay the case pending Plaintiff’s retention of counsel (ECF No.

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179) is DENIED as moot. With the exception of his retaliation claim under the ADA, Plaintiff’s
claims are dismissed with prejudice.
IT IS SO ORDERED.
DATED this 11th day of August 2023.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge

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