Vejo v. Portland Pub. Sch.

• Decision Date: 06 September 2016
• Docket Number: No. 3:14-cv-01656-AA,3:14-cv-01656-AA
• Citation: 204 F.Supp.3d 1149
• Parties: Margarita VEJO, Plaintiff, v. PORTLAND PUBLIC SCHOOLS, a public entity; Roberta Cooper, individually and in her official capacity; Petra Callin, individually and in her official capacity; Lewis & Clark College, an Oregon public benefit corporation ; and Does 1 Through 50, inclusive, Defendants.
• Court: U.S. District Court — District of Oregon

204 F.Supp.3d 1149

Margarita VEJO, Plaintiff,

v.PORTLAND PUBLIC SCHOOLS, a public entity; Roberta Cooper, individually and in her official capacity; Petra Callin, individually and in her official capacity; Lewis & Clark College, an Oregon public benefit corporation ; and Does 1 Through 50, inclusive, Defendants.

No. 3:14-cv-01656-AA

United States District Court, D. Oregon, Portland Division.

Signed September 6, 2016

Herbert G. Grey, Attorney at Law, 4800 SW Griffith Drive, Suite 320, Beaverton, OR 97005, Micah D. Fargey, Fargey Law PC, 5 Centerpointe Drive, 4th Floor, Lake Oswego, OR 97035, Attorneys for plaintiff.

Michelle B. Smigel, Cody J. Elliott, Miller Nash Graham & Dunn LLP, 111 SW Fifth Avenue, Suite 3400, Portland, OR 97204, Attorneys for defendants Portland Public Schools, Roberta Cooper, and Petra Callin.

Damien T. Munsinger, Paula A. Barran, Barran Liebman LLP, 601 SW Second Avenue, Suite 2300, Portland, OR 97204, Attorneys for defendant Lewis & Clark College.

OPINION AND ORDER

AIKEN, Judge:

Plaintiff Margarita Vejo was a master's degree student in defendant Lewis & Clark's Graduate School of Education and Counseling. As part of this program, she was placed in a counseling internship at Madison High School ("Madison"), which is part of defendant Portland Public Schools ("PPS"). Defendant Petra Callin ("Callin") is the principal at Madison and defendant Roberta Cooper ("Cooper") is a counselor at Madison who served as plaintiff's on-site internship mentor.¹ After about two months, Callin and Cooper terminated the internship. Lewis & Clark offered to let plaintiff continue in the program but imposed requirements before she would be placed in a new internship; those requirements would have delayed her graduation at least nine months. Plaintiff opted instead to transfer into a different Lewis & Clark program. She graduated on time but without a counseling degree.

Plaintiff then filed this action, asserting defendants violated her rights under the First and Fourteenth Amendments to the United States Constitution; various Oregon state antidiscrimination statutes; and Oregon contract law. After discovery, all defendants filed motions for summary judgment and motions to strike. For the reasons set forth below, the motions are granted in part.

BACKGROUND

Plaintiff, a Russian-born orthodox Christian, immigrated to the United States as an adult. Vejo Decl. ¶ 3 Apr. 29, 2016; Vejo Dep. 129:7-14. For thirteen years, she worked as a social worker for the Immigrant and Refugee Community Organization ("IRCO"), assisting immigrant families in their transition to life in the United States. Vejo Decl. ¶¶ 4-6 Apr. 29, 2016. Her colleagues at IRCO describe her as a "tireless" advocate whose "quiet sensitivity, compassion and friendliness quickly put her clients at ease and engender[ed] trust." See Grey Decl. Ex. 28 at 3-13 Apr. 29, 2016.

In the fall of 2012, plaintiff enrolled in Lewis & Clark's Graduate School of Education and Counseling. Vejo Decl. ¶ 12 Apr. 29, 2016. Internships are a major component of the master's in counseling program at Lewis & Clark. Each student must complete three internships: two "micro" (100 hour) internships and one "macro" (full school-year) internship. PPS and Lewis & Clark have a contractual internship agreement facilitating the placement of Lewis & Clark counseling interns in PPS schools. The interns are not parties to the internship agreement, which gives PPS unilateral authority to terminate an internship whenever it deems removal in the school's best interest. Grey Decl. Ex. 13 at 2 Apr. 29, 2016.

The record contains mixed evidence regarding plaintiff's academic performance at Lewis & Clark. She earned very good grades in the majority of her courses. See Grey Decl. Ex. 38 Apr. 29, 2016. She also performed well in her initial "micro" internships; Heather Hadraba ("Hadraba"), the Director of the School Counseling Program, stated her only concern was plaintiff might have been "taking on a little bit too much" by clocking more than the required 100 hours. Hadraba Dep. 79:14-21. However, plaintiff received an incomplete in Ethical and Legal Issues after failing the final; withdrew from Social Justice and Diversity; and required substantial assistance with her writing assignments. Pederson Dep. 50:21-51:11, 127:10-12; Fletcher Dep. 42:6-14; Grey Decl. Ex. 24 at 2 Apr. 29, 2016.

Plaintiff also struggled with some of the subject matter in the courses. For example, Vicki McNamara ("McNamara"), who taught the Ethical and Legal Issues course in which plaintiff received an incomplete, stated "over the years that I've taught this class [plaintiff] stands out to me as the most uncomfortable [with discussions of adolescent sexuality.] I don't recall another student being that resistant and pushing back." McNamara Dep. 108:10-13. In an email written during plaintiff's first year in the program, McNamara documented concerns about plaintiff "seem[ing] out of touch and not understanding the culture in which she will work." Grey Decl. Ex. 19 at 2 Apr. 29, 2016. Earl Scott Fletcher ("Fletcher"), Dean of the Graduate School of Education and Counseling, recalled faculty members' concern that plaintiff had expressed "outrage" that a panel of lesbian, gay, bisexual, transgender, and queer professionals ("LGBTQ") had been part of the curriculum. Fletcher Dep. 42:24-43:5. Fletcher stated the faculty commented on plaintiff's "rigidity and ... complete dismissal of the issues that were being raised.... They were concerned that [plaintiff] could make no space in her own understanding of the work to benefit from that experience[.]" Fletcher Dep. 43:8-14.

At the beginning of her second year at Lewis & Clark, plaintiff was accepted at Madison for her yearlong "macro" internship. Cooper selected plaintiff for the position based on her "strong background in working with refugees." Cooper Dep. 68:10-23. Cooper's initial impression of plaintiff's interactions with students was positive. Cooper Dep. 77:2-12. Hadraba, plaintiff's Lewis & Clark-based mentor, thought plaintiff was doing "good work" when she conducted an early site visit. Hadraba Dep. 146:6-147:23. In late September and early October, however, a series of interactions changed Cooper's evaluation of plaintiff's performance.

In mid-to late September, plaintiff had a conversation with Myriah Day ("Day"), a student support coordinator at Madison. Day was describing some of the student clubs at Madison, including the Black Student Union. Day Dep. 30:5-31:1. Plaintiff asked why Madison did not also have a White Student Union. Day Dep. 31:2-3. Day responded that "the White Student Union is everywhere, you know, everywhere we go in the world is the White Student Union because white is part of this culture that we live in." Day Dep. 31:2-10. The conversation then moved on to comparing the graduation rates at Madison to those at Lincoln High School ("Lincoln"), another PPS school. Madison and Lincoln are demographically different, a significantly larger percentage of Madison's students are low-income and/or of color. Day Dep. 32:17-23. Plaintiff expressed skepticism that demographics adequately explained the different graduation rates. Day Dep. 33:8-34:2. The conversation left Day concerned that plaintiff lacked cultural competency and a basic understanding of educational equity. Day Dep. 34:25-35:21. Because she was worried those deficiencies would negatively affect plaintiff's ability to counsel Madison students, Day shared the conversation and her thoughts about it with Cooper and Tammy O'Neill, Madison's assistant principal. Day Dep. 38:24-39:5. In a different conversation around the same time, plaintiff told Cooper students "either want to perform or they don't." Cooper Dep. 79:20-80:15. Like Day, Cooper worried plaintiff lacked the understanding of educational equity necessary to work with Madison students. Cooper Dep. 79:20-80:15.

Several weeks after these conversations with Day and Cooper, plaintiff and Erin Hale ("Hale"), a Madison counselor, counseled a student who was struggling to make social connections. Hale suggested referring the student to the Gay Straight Alliance ("GSA"). Hale Dep. 54:15-55:4, 55:23-56:8, 57:4-16. The student left, and plaintiff asked whether Hale planned to inform the parents about the referral because she assumed "that would be an appropriate first step before making a resource like [the GSA] available." Hale Dep. 58:14-20. Plaintiff shared with Hale she believed that homosexuality with "something that was created or a choice" and thus "could be changed." Hale Dep. 60:2-10. Hale believed allowing plaintiff to work with students who were "already fragile" could be "detrimental" if "her views were to come out." Hale Dep. 65:8-18. Hale feared plaintiff would be unable to direct students to the resources they needed. Hale Dep. 77:20-78:17.

The next day, Hale told Cooper about her conversation with plaintiff. Cooper Dep. 81:21-82:5. Cooper followed up with plaintiff, who substantially confirmed Hale's account of the conversation. Cooper Dep. at 84:2-7. Cooper then engaged plaintiff in a conversation about being "judgmental." Plaintiff recalled the conversation as follows:

Q. Do you remember telling Roberta Cooper that in Russia you don't talk about homosexuality, or words to that effect?

A. I remember I said that in Russian culture we don't talk personal stuff in the public, at work. And it doesn't matter if it's homosexual or heterosexual or whatever, we just don't talk about it. It's considered very impolite and rude and not appropriate.

Q. And you remember telling Roberta Cooper that?

A. Yes.

Q. How did that come up?

A. When I said that I am a Christian and I have Christian value, she immediately said, you judge people. And I say, no, I don't judge. And she said, you Russians judge people. I say, no, we don't judge. She said, your Russian government judge people.

Vejo Dep. 78:8-25.

Cooper recalled the conversation somewhat differently:

Q. [W]e started a

...