Breyer v. Pac. Univ.

• Decision Date: 10 March 2020
• Docket Number: Case No. 3:17-cv-00036-AC
• Parties: REBEKAH JOY BREYER, an individual, Plaintiff, v. PACIFIC UNIVERSITY, a domestic nonprofit corporation, Defendant.
• Court: U.S. District Court — District of Oregon

REBEKAH JOY BREYER, an individual, Plaintiff, v. PACIFIC UNIVERSITY, a domestic nonprofit corporation, Defendant.

Case No. 3:17-cv-00036-AC

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

March 10, 2020

OPINION AND ORDER

ACOSTA, Magistrate Judge:

Introduction

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 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. (Decl. of Rebekah Breyer in Opp'n to Pacific University's Mot. for Summ. J., ECF No. 81 ("Breyer Decl.").) 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 Court has recognized the "virtual unanimity" of circuit courts that "a party 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, 475 U.S. 1048 (1986)). However, the "rule is in tension with the principle that a court's role in decidinga summary judgment motion is not to make credibility determinations or weigh conflicting evidence" and "'should be applied with caution.'" Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Sch. Dist. No. 1J 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." Messick v. 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.

(Breyer Decl. ¶ 3.) 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.'sReply, at 34.)

With regard to Breyer's application decisions, the deposition testimony referenced by Pacific provides:

Q. What information did you rely on in making your decision about where to apply? What kinds of documents did you review?

A. Documents?

Q. How did you get information about [Pacific] and [University of Denver]?

A. 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.

Q. What parts of the website did you look at?

A. As I recall, everything that had to -- to do with the actual PsyD program.

Q. Okay. So can you list what those things were? What information were you looking for about the PsyD program?

A. I can recall course work, there was a diversity iss [sic] -- inclusion, faculty of course.

* * * *

A. And with each university I looked at both the -- each faculty's specialty.

Q. Anything else?

A. 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.

Q. Anything else that comes to mind?

A. 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.

Q. So is that a test that's administered by the State?

A. Honestly, I don't know the details. Like I know it is the State -- like State regulated, but I'm not sure, yeah.

Q. So it's called the EPPP test?

A. Yeah.

Q. Okay.

A. I believe so, something --

Q. But that's a test that is relevant to licensure, not getting your PsyD, right?

A. Correct.

Q. Okay.

A. But I wanted to look at --

Q. That's reasonable.

A. -- if -- if the school prepared you enough.

Q. Right. What specifically did you review on Pacific's website about diversity and inclusion?

A. 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 considerParagraph 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 forPostsecondary 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.

Background

I. Pacific, the SPP, and the PsyD Program

A. Pacific and the Role of Diversity in the SPP

Pacific is a private, postsecondary educational institution in the State of Oregon. (Corrected Second Am. Compl., ECF No. 62 ("SAC"), ¶ 8.) The School of Professional Psychology (the "SPP"), which is housed within Pacific, offers several doctoral tracks for...