Rebekah Breyer v. Pacific University ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBEKAH J. BREYER, No. 20-35304
Plaintiff-Appellant, D.C. No. 3:17-cv-00036-AC
v.
MEMORANDUM*
PACIFIC UNIVERSITY, a domestic
nonprofit corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted July 9, 2021
Portland, Oregon
Before: O'SCANNLAIN, PAEZ, and BENNETT, Circuit Judges.
Partial Dissent by Judge BENNETT
Rebekah Breyer (“Breyer”) appeals the district court’s grant of summary
judgment in her action under § 504 of the Rehabilitation Act and Title III of the
Americans with Disabilities Act (“ADA”) (collectively, “the Acts”) against Pacific
University (“the University”). Breyer, who has cerebral palsy, alleged ten counts
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of disability discrimination during the admissions process for, and during her time
as a student in, the University’s doctor of clinical psychology program.
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 of law.” Fed.
R. Civ. P. 56(a); Monzon v. City of Murrieta, 978 F.3d 1150, 1155–56 (9th Cir.
2020). No genuine issues of material fact preclude summary judgment on Breyer’s
various theories of discrimination. Reviewing de novo, we affirm.
1. The district court correctly applied a “meaningful access” standard to assess
Breyer’s discrimination claims and correctly reasoned that whether a student has
received meaningful access depends on viewing the program as a whole. Bird v.
Lewis & Clark Coll., 303 F.3d 1015, 1020, 1022 (9th Cir. 2002); see also 28
C.F.R. § 35.150(a).
2. The district court did not err in granting summary judgment on Breyer’s
claim that the University failed to provide her an equal opportunity in the
admissions process and doctor of psychology program once she was admitted. The
Acts permit the University to investigate further whether an applicant meets all
academic and technical requirements for admission. Se. Comm. Coll. v. Davis, 442
U.S. 397, 405 (1979). The University determined that Breyer was a strong
candidate for admission and she was admitted. After admission and before Breyer
began classes, the University sought to determine appropriate accommodations for
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Breyer such that she would be afforded an equal opportunity to participate in her
academic program.
After Breyer began classes, the University counseled her about her intended
career path, informing Breyer that the adult psychology track in which she was
enrolled was not well-matched with her stated career interest in forensic
psychology. The University sought to inform Breyer that internships and
practicum placements might have differing requirements for certain fine motor
skills. Breyer requested meetings and sought information from the University
about upcoming course requirements and the need for accommodations to
complete certain coursework. Contrary to Breyer’s argument, the undisputed facts
do not establish that the University tried to steer Breyer away from her program or
provided her with an unequal opportunity on account of her disability. Nor do the
undisputed facts show that University officials believed that she was unable to
succeed as a student with disabilities.
The University’s refusal to provide Breyer with a paid personal assistant to
complete certain future course requirements did not threaten Breyer’s meaningful
participation in the doctor of psychology program nor render her access to it
unequal overall. See Bird, 303 F.3d at 1020, 1022. Breyer’s insistence that she
needed a paid personal assistant, and her subsequent withdrawal from the
University two days after she made the request, occurred before the University had
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determined whether certain course requirements could be modified for the
following semester. Moreover, the record shows that the University granted
Breyer all other accommodations requested by Breyer during the semester in which
she was enrolled.
3. The district court did not err in granting summary judgment to the
University on Breyer’s retaliation claim. 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).1 T.B. ex rel. Brenneise v. San
Diego Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015). Under that
framework, a plaintiff must first establish a prima facie claim of retaliation by
demonstrating that (1) she was engaged in protected activity; (2) 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).
An adverse action is any action “reasonably likely to deter [individuals]
from engaging in protected activity.” Pardi v. Kaiser Found. Hosp., 389 F.3d 840,
850 (9th Cir. 2004); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
1
Because the ADA and the Rehabilitation Act are interpreted consistently,
retaliation claims arising under the Rehabilitation Act are analyzed under the same
rubric. See Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th
Cir. 2002) (O’Scannlain, J., dissenting from denial of reh’g en banc).
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53, 68 (2006). Adverse actions include, among other things, tolerating harassment,
depriving a person of available support services, and requiring an individual to go
through unnecessary hoops. See Ray, 217 F.3d at 1241–42 (outlining cases finding
adverse actions).
The record does not show a genuine dispute of material fact as to whether
the University engaged in retaliation against Breyer. Breyer initiated several
meetings with university officials to discuss possible accommodations and course
requirements, and university officials proactively reached out to Breyer to discuss
concerns that Breyer expressed during class time. There is no evidence that the
University took any adverse action against Breyer to dissuade her from
complaining of discrimination. Nor is there any evidence that the University failed
to respond to her complaints—the University responded to each of Breyer’s
concerns as they arose and instructed Breyer on how to file a formal complaint.
See White, 548 U.S. at 57; Pardi, 389 F.3d at 850.
4. The district court declined to recognize a hostile environment theory of
disability discrimination under the Acts. Indeed, we have not held that such a
claim is cognizable. But even assuming, without deciding, that such a claim is
cognizable, it fails here. The record does not demonstrate that the University’s
actions rise to the level of severe or pervasive harassment. See Arizona ex rel.
Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016). Breyer has not
5
pointed to any evidence in the record that suggests she experienced an abusive
educational environment. See id.
5. The district court did not err in granting summary judgment on Breyer’s
discrimination claims relating to the admissions process. Breyer made several
references to her disability status throughout her application materials. The
University did not discriminate against Breyer when it asked Breyer program-
related questions about her self-disclosed functional limitations. See 34 C.F.R. §
104.42(b)(4). Inquiries about an applicant’s functional limitations are permissible
because they address whether a person is qualified for a program. See Wong v.
Regents of Univ. of Cal., 192 F.3d 807, 817 (9th Cir. 1999); 34 C.F.R. § 104.42(a);
45 C.F.R. § 84.3(1)(3).
6. The district court did not err in granting summary judgment on Breyer’s
reasonable modification and auxiliary aid claims. A university is only required to
make reasonable accommodations, Baughman v. Walt Disney World Co., 685 F.3d
1131, 1135 (9th Cir. 2012), and is not required to make fundamental or substantial
modifications to its programs for a student with disabilities, Bird, 303 F.3d at 1020(citing Alexander v. Choate, 469 U.S. 287, 300 (1985)). See also 42 U.S.C.
§ 12182(b)(2)(A)(ii); 34 C.F.R. §§ 104.44(a), 104.44(d)(2); 28 C.F.R.
§§ 36.303(a), 36.306. Although Breyer withdrew from the university mid-way
through her first semester, after the University denied her request for a paid
6
personal assistant, the officials in charge of her academic program were still
researching which reasonable accommodations would be appropriate in light of
future course requirements. The record shows that the University granted Breyer
every accommodation that she requested to facilitate her participation in her first
semester classes.
7. The district court did not err in granting summary judgment on all of
Breyer’s claims. The University moved for summary judgment against each of
Breyer’s claims as alleged in the Second Amended Complaint. Summary
judgment is appropriate where, as here, there is no genuine dispute of material fact,
Fed. R. Civ. P. 56(a), and the moving party is entitled to judgment as a matter of
law.
AFFIRMED.
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FILED
Breyer v. Pacific University, No. 20-35304 AUG 27 2021
MOLLY C. DWYER, CLERK
BENNETT, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
The failure to reasonably accommodate an otherwise qualified individual’s
disability is discrimination under Section 504 of the Rehabilitation Act. Alexander
v. Choate, 469 U.S. 287, 300–01 (1985). An individual is “otherwise qualified” if
she “is able to meet all of a program’s requirements in spite of [her] handicap.” Se.
Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Title III of the ADA likewise makes
it actionable discrimination to fail to make reasonable modifications that are
necessary to accommodate an individual’s disability, unless a proposed modification
would “fundamentally alter” the service being offered. 42 U.S.C.
§ 12182(b)(2)(A)(ii).
Defendant-Appellee Pacific University (“Pacific”) was concerned that
Plaintiff-Appellant Rebekah Breyer would be unable to complete certain parts of her
cognitive assessment course unaccommodated. During one meeting, the Director of
Diversity, Dr. Susan Li, expressed that Breyer’s current accommodations “did not
appear to be sufficient to provide [her] the support that she would need in the area
of assessment.” In particular, Dr. Li was concerned that the standardized testing
component of the assessment course would “require timed administrations and
manipulation of materials,” and that “any nonstandard administration might result
in unreliable and invalid test results.” Those concerns were reiterated in a
1
subsequent meeting between Breyer and the Director of the School of Professional
Psychology, Dr. Jennifer Clark, who also explained that the cognitive assessment
course would require “manipulation of materials and using a [stopwatch] to
administer timed subtests”; that the validity of test results might be affected “if not
administered according to standardized procedures”; and that Pacific would “gather
more information about accommodations.”
Responding to those concerns, Breyer took the initiative to research and
request a possible accommodation—an assistant provided by Pacific to perform the
tasks that she would be unable to perform due to her disability. Dr. Clark granted
this request on behalf of Pacific, allowing Breyer to “complete the requirements of
the coursework with the assistance of someone who would administer the testing.”
Yet there was one important caveat: the cost of an assistant would be Breyer’s
responsibility. 1
In other words, Pacific determined that Breyer did not have to administer the
standardized tests to complete the cognitive assessment course and thus necessarily
1
The relevant portion of Dr. Clark’s email summarizing her meeting with
Breyer reads in full:
We discussed your request via email about the possibility of having an
assistant for the test administration requirements in assessment coursework
and in practicum training. I let you know that you could complete the
requirements of the coursework with the assistance of someone who would
administer the testing, but that the expense for this service would be your
responsibility.
2
determined that doing so was not a “requirement” of the Doctor of Clinical
Psychology Program and would not “fundamentally alter” it. Those determinations
meant that under both the Rehabilitation Act and the ADA, Pacific owed Breyer a
duty to reasonably accommodate her disability. Pacific failed that duty, and thus
discriminated against her, when it refused to provide the accommodation she
requested or to suggest a reasonable alternative. See Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (“[A] qualified
individual with a disability is not entitled to the accommodation of her choice, but
only to a reasonable accommodation.” (quotation marks and citation omitted)).
The majority avoids that conclusion and affirms summary judgment on
Breyer’s reasonable accommodation claim under the belief that “officials in charge
of [Breyer’s] academic program were still researching which reasonable
accommodations would be appropriate in light of future course requirements.”
Majority at 6–7. But this belief finds no support in the record. At the very least, it
is subject to a genuine factual dispute.
On the Sunday before Dr. Clark decided to allow Breyer to use an assistant at
her own expense, Dr. Clark was indeed still exploring “what accommodations would
be allowable and acceptable.” It was her “plan to address/discuss these issues on
Monday with involved faculty,” and indeed by Monday, Dr. Clark had determined
that allowing Breyer to use an assistant to administer the standardized tests was an
3
allowable and acceptable accommodation. Pacific was simply unwilling to pay for
the accommodation, or to offer to provide any of the obvious alternatives to a paid
assistant, such as allowing another student to administer the tests on Breyer’s behalf.
In short, Pacific has presented no evidence that it was “still researching what
reasonable accommodations would be appropriate” when it refused to pay for a
personal assistant—i.e., it has presented no evidence to undermine Breyer’s claim
that it outright denied her request for a reasonable accommodation. Nor has it
shown—or even argued—that providing Breyer an assistant (or any other available
accommodation) would have caused undue hardship. See Vinson v. Thomas, 288
F.3d 1145, 1154 (9th Cir. 2002) (under the Rehabilitation Act, the defendant bears
the burden of producing evidence that an accommodation is not reasonable after the
plaintiff produces evidence that an accommodation is possible); Karczewski v. DCH
Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (under Title III of the
ADA, “[i]f Plaintiff establishes a prima facie case, then Defendant must make the
requested modification unless it proves that doing so would alter the fundamental
nature of its business” (quotation marks and citation omitted)). And yet, Pacific has
defeated Breyer’s reasonable accommodation claim at summary judgment.
Thus, because I would remand the reasonable accommodation claim for trial,
I respectfully dissent from this portion of the majority disposition. 2
2
I concur in the remainder of the disposition.
4