Opinion
Case No. 3:18-cv-01339-AC
03-11-2021
AMY PATERSON SANDIE, Plaintiff, v. GEORGE FOX UNIVERSITY, an Oregon Public Benefit Corporation, Defendant.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff Amy Paterson Sandie ("Sandie") filed this lawsuit against George Fox University ("George Fox") alleging breach of contract, breach of the covenant of good faith and fair dealing, negligence, and violation of federal disability laws. Notice of Removal, ECF No. 1, Ex. A. Pursuant to Rule 56, George Fox filed a motion for summary judgment against all of Sandie's claims. Def.'s Mot. Summ. J. ("Mot."), ECF No. 31; FED. R. CIV. P. 56 (2020). George Fox argues there is no genuine issue of material fact that it "did not breach any contract with Plaintiff, that it was not negligent as alleged, and that it did not fail to accommodate any of Plaintiff's alleged disabilities." Mot. at 1. There are genuine issues of material fact with respect to Sandie's breach of contract claim. There are no genuine issues of material with respect to Sandie's disability and negligence claims. Accordingly, George Fox's motion should be GRANTED in part and DENIED in part.
Background
I. George Fox's MAT Program
George Fox is a private, Christian university located in Oregon. Bering Decl. dated Feb. 18, 2020, ECF No. 32 ("Bering Decl."), at ¶ 2-3. George Fox offers more than forty majors and degree programs, including twelve masters and doctoral degrees programs. Id. Relevant here, George Fox offers a one-year, full-time Master of Arts in Teaching ("MAT Program"). Bering Decl. Ex. 1, at 4; Sandie Decl. dated April 16, 2020, ECF No. 46 ("Sandie Decl."), Ex. 8, at 4. To complete the MAT Program, a student, or "Teacher Candidate," must satisfactorily complete thirty-six credits of coursework that must include six credits of classroom teaching, also known as a practicum. Bering Decl. Ex. 1, at 12-16. All Teacher Candidates "must meet or exceed the minimum practicum requirements to be eligible" for teaching licensure. Bering Decl. Ex. 1, at 16.
Exhibits 1-2 of the Declaration of Gary Bering and Exhibits 8-9 of the Declaration of Amy Paterson Sandie are identical. Hereinafter, when referring to these exhibits the court will cite only to the Bering Declaration versions.
According to George Fox, the "MAT Program has been developed in compliance with the Oregon Administrative Rules." Bering Decl. Ex. 1, at 30.
At the time of Sandie's enrollment two documents defined the requirements of and described the procedures controlling a MAT Program student's course of study: (1) the MAT Program Guide 2016-2017 (the "Program Guide"), and (2) the Guidelines for Clinical Practice and Education 2016-2017 (the "Practicum Guidelines"). Bering Decl. Exs. 1-2, respectively. A Teacher Candidate is assigned a "Support Team" that consists of a Cooperating Teacher ("CT"), a Teacher Education Assistant ("TEA"), and a Cohort Leader. Bering Decl. Ex. 2, at 10-11. A TEA "serves as a liaison between [George Fox] and the practicum site," "coordinate[s] efforts of the Teacher Candidate's Support Team and overall practicum experience," "confers with the CT and [T]eacher [C]andidate," "conducts formal observations of the Teacher Candidate in the classroom," and "along with the CT, will conduct final evaluations as required for licensure." Id. at 10. The Cohort Leader "communicate[s] academic structure and university requirements of the practicum to the Teacher Candidate," and "provide[s] time and steady dialogue with the Teacher Candidate throughout the [practicum] experience." Id. at 11.
During the practicum, a CT hosts a Teacher Candidate in the CT's classroom and demonstrates to the Teacher Candidate
effective and current methods of teaching and classroom management . . . . In addition, the CT helps the Teacher Candidate negotiate the school culture by introducing him/her to personnel, policies, procedures, places and resources . . . . The CT participates fully in collaborative planning and strategies with the candidate, giving the Teacher Candidate space to experiment with and reflect upon practices learned in Teacher Education program coursework. The CT communicates well and often . . . providing feedback regarding both positive and negative perspectives of candidate's performance.Id. at 10. George Fox supports "co-teaching" strategies between the CT and Teaching Candidate in the practicum classroom. Bering Decl. Ex. 1, at 17. During the practicum, "the Teacher Candidate's schedule will mirror the schedule of the [CT]." Bering Decl. Ex. 2, at 14. "The Teacher Candidate is expected to be an active teacher in the classroom from the first day of the [practicum] until the end of the [practicum]." Id.
At an appropriate point in the practicum, the Teaching Candidate assumes "primary teaching duties," which is all or a significant portion of the responsibilities of the CT, including lesson planning, teaching, and parent contacts. Id. Lesson planning includes written plans that have "goals, learning targets, supporting materials, teaching strategies, assessment plans, and necessary resources." Id. "The Teacher Candidate must work closely with the [CT] to receive approval for all lesson plans before the day a lesson is taught. Lessons observed by the [TEA] or Cohort Leader must be written and turned in to the observer ahead of time." Id. at 15. There are several important check-points during the practicum: (1) the initial three-way conference, (2) routine observations, (3) and the final three-way conference. Id. at 16.
The Practicum Guidelines contain a written process for reassigning or removing a Teaching Candidate from a practicum placement. Id. at 20. The purpose, at least in part, of the specific steps is to provide a Teaching Candidate notice of and opportunity to correct any observed deficiencies:
1. Members of the Teacher Candidate's Support Team, including the candidate, will address concerns by following the procedure outlined on page 19 of this Clinical Practice Guidebook. The TEA will take notes of any and all three-way meetings and provide a summary to the Office of Clinical Practice including timeframes for adjustments, tasks and consequences.
2. If a candidate is not making progress toward the competencies and standards of teacher preparation as set forth by School of Education, a conference will be held and a written Letter of Concern, drafted by the TEA, will be distributed to the Teacher Candidate, the Program Director, and the Office of Clinical Practice; and placed in the candidate's file in the appropriate office of the GFU School of Education. A Performance Contract may be developed immediately or in a subsequent conference with the Program Director, the Cohort Leader, and the University TEA. The performance contract should be distributed to all parties as above.
3. If, in the judgment of the TEA and the Cohort Leader, the primary cause for a serious concern in a practicum placement is something other than the failure of a candidate to make progress toward competencies and standards; they should inform
the Office of Clinical Placement and the Program Director. The Office of Clinical Practice and the director will work with the TEA and the Cohort Leader to determine the appropriate way forward.Bering Decl. Ex. 2, at 20-21.
4. After completing the steps above (as appropriate), the Office of Clinical Practice in collaboration with the Program Director will render a formal and final decision whether or not a candidate should continue or be pulled from a placement. The Program Director will notify the Teacher Candidate in writing and copies will be sent to the TEA and the Cohort Leader. The Office of Clinical Practice will notify the school district, principal, and cooperating teacher.
5. Reassignment to other educational practicum experiences will be made only in the event that a teacher candidate is making reasonable progress toward competencies and standards, and has not violated ethical standards, at the time removal is deemed necessary.
The Program Guide sets forth the circumstances under which a Teacher Candidate may be removed or suspended from the MAT Program itself:
Bering Decl. Ex. 1, at 21. The Program Guide explicitly incorporates into this definition of circumstances warranting suspension or removal the referenced chapters of the Oregon Revised Statutes and the Oregon Administrative Rules. Id.
UNPROFESSIONAL BEHAVIORS, ETHICS AND VALUES
Candidates who egregiously offend [(Teacher Standards & Practices Commission)] TSPC behavioral and ethical standards may be suspended from the program and/or teaching experience immediately until evidence is collected and a decision is made by the MAT Review and Retention Committee. Any decision by the MAT Review and Retention Committee may be appealed to the Chair of Graduate Teacher Education. Final appeals will be directed to the Dean of the College of Education.
If, during the course of the MAT program, a candidate is charged with a crime that is either listed in ORS 342.143 and/or ORS 342.175 as reason for a teaching license to be denied or revoked or is in violation of TSPC's guidelines for "Competent and Ethical Performance of Oregon Educators" (OAR 584-020-0000), then the teacher candidate will be suspended from practicum experiences immediately and will not be allowed to enter the school site facilities; such a candidate will not be allowed to continue the field experience until cleared from the charge(s). If the teacher candidate is convicted of such crimes, he/she will be immediately dismissed from the program.
In the event of suspension, the Program Guide outlines the following procedures:
• The cohort leader will meet with the candidate and a plan to remedy the shortcoming will be devised. The conference will be formally documented in writing in the form of a Letter of Concern. A copy will be sent to the teacher candidate and the Director of the MAT program and copy of the letter will be placed in the candidate's file in the appropriate MAT Education office. The candidate may reply in writing to this document. Copies of the candidate response will be similarly distributed.
• There will be regular follow-ups to check progress.
• If the progress is not shown in the designated areas, a second conference will be held between the candidate, the cohort leader, the MAT Director, and other involved parties. An administrative assistant will keep notes of the meeting. The conference will be formally documented in writing in the form of a Performance Contract. A copy of the contract will be sent to the candidate, the cohort leader, the MAT Director, and the Graduate Teaching & Leading (GTL) Chair. One copy will be placed in the candidate's file in the appropriate Teacher Education office. The candidate may reply in writing to this document. Copies of a candidate response will be similarly distributed.
• If the candidate is unable to demonstrate competency in designated area(s) on the Performance Contract, the MAT Director will present a Proposal for Suspension to the GTL Chair (or those acting as Chair*), the MAT Review and Retention Committee, and the Dean of the College of Education. Documents will be placed in the candidates file.
• A decision for suspension may be appealed[.]
Id. at 22.Please Note: If the candidate is being suspended due to grades and/or dismissed due to gross violation of professional ethics, behaviors, and values, then the above procedures may be truncated and dismissal may be immediate.
When Teaching Candidates receive the Program Guide, they are required to sign a page that contains this acknowledgement: "Yes, I have read the Master of Arts in Teaching Program Guide. I understand the Program Guide contains information to assist me while I am in the MAT Program. I understand that it is NOT a contract of a specific treatment in a particular situation." Bering Decl. Ex. 1, at 35 (emphasis in original).
II. Sandie in the MAT Program
Sandie enrolled in the MAT Program in June 2016. Sandie Decl. at ¶ 3. She enrolled with the expectation of graduating May 2017. Id. at ¶ 6. Prior to enrolling at George Fox, Sandie graduated from Indiana University with honors and obtained a master's degree in social work from the University of Michigan. Id. at ¶ 4. Upon enrollment, Sandie received the Program Guide and Practicum Guidelines. She signed the form confirming her receipt of the Program Guide on July 12, 2016, which included the acknowledgement that the Program Guide was not a contract. Bernstein Decl. dated Feb. 18, 2020, ECF No. 34 ("Bernstein Decl."), Ex. 3a, at 1. George Fox also granted Sandie accommodations for her asthma in the form of "flexibility with leaving class or taking breaks[.]" Sandie Decl. Ex. 10. These accommodations applied to the classes on the George Fox campus and in the practicum. Id. (explaining in an email titled "[DSO] MATG 577.0FC - PRACTICUM III (CRN: 4421) Notification of Academic Support Services Spring 2017" that Sandie "might miss your class due to active symptoms of a disability.")
A. Placement with Nancy Blake
Sandie completed and passed all MAT Program required coursework, including the edTPA exam, prior to the start of her practicum. Sandie Decl. at ¶ 5. George Fox placed Sandie with Nancy Blake ("Blake"), a first-grade teacher at Middleton Elementary School, for her first practicum. Id. at ¶ 7. At the outset of Sandie's practicum, her Support Team consisted of Blake as her CT, id., Megan Love ("Love") as her TEA, Mot. at 7, and Rachel Henry ("Henry") as her Cohort Leader. Sandie Decl. at ¶ 15. After several incidents with Blake, Sandie called Henry to discuss the quality of the placement. Answer at ¶ 11. Sandie expressed dissatisfaction with her practicum. Answer ¶ 12. On December 7, 2016, Sandie attended a meeting with Middleton Elementary School Principal John Wollmuth and the Sherwood School District Human Relations Director Steve Emmert. Answer at ¶ 14; Volpert Decl. dated April 16, 2020, ECF No. 47 ("Volpert Decl."), Ex. 2, at 89-90. After the meeting, Sandie informed Brenda Morton ("Morton"), the Interim Director of the MAT Program, that she felt pressured in the meeting to stay in the placement with Blake and that Sandie had decided to continue with her current placement. Answer at ¶ 15; see Volpert Decl. Ex. 2, at 89-93. Love took leave in January 2017, and Michael Englen ("Englen") replaced Love as Sandie's TEA that same month. Volpert Decl. Ex. 1, at 6.
The edTPA is a teacher performance assessment exam. See Bering Decl. Ex. 2, at 9. --------
B. Removal from Placement with Nancy Blake
Sandie became ill the week of the February 13, 2017. Sandie Decl. at ¶ 12. On Tuesday, February 14, 2017, after issues had continued to arise in Sandie's practicum, Morton sent a Letter of Concern (the "Letter") to Sandie, as required by the Practicum Guidelines. Sandie Decl. Ex. 1, at 1. Sandie signed the Letter the same day. Id. at 1. The Letter outlined heighted expectations for Sandie in her practicum:
Expectations:
1. Be prepared with written lesson plans for each major lesson during the day (reading, writing, math, science/social studies)[.]
2. Immediately assume leadership in planning and teaching (to include taking over the entire schedule of the cooperating teacher)[.]
3. Work respectfully with your cooperating teacher, receiving feedback and implementing those suggestions in subsequent lessons.
4. Make progress in all core teaching standards, as outlined by your TEA[.]Id. The Letter also stated the plan would be reviewed seven days later and that if Sandie failed to meet the Letter's expectations, she would be unable to move forward in the MAT Program without a petitioning a review committee. Id.
On February 15, 2017, Englen observed Sandie in Blake's classroom; he asked for a formal lesson plan and Sandie informed him she did not have one because she thought the observation was informal and, therefore, a formal lesson plan was not required. Sandie Decl. at ¶ 14. The next day, Sandie saw a doctor about her asthma and illness, and she received prednisone at the Kaiser Mt. Scott Medical Office. Id. at ¶ 15. On Saturday, February 18, 2017, Morton sent Sandie an email asking her to provide lesson plans for the next week by the following day: "Amy, [p]lease send me the lesson plans you wrote for Wednesday through Friday, and then the lesson plans for next week, by Sunday night. Thank you, Brenda[.]" Sandie Decl. Ex. 2, at 1. Sandie responded by email within one hour stating she would send the lesson plans by the next day, as requested, and asking what format was required. Id. In a brief email exchange, Sandie and Morton discussed Sandie's illness and condition, the format requirement of lesson plans, and the expectations set forth in the Letter. Id.
On Sunday, February 19, 2017, Sandie went to the hospital seeking treatment for her asthma. Sandie Decl. at ¶ 21, Ex. 2 at 3. Sandie sent Morton an email notifying Morton she was in the hospital and attaching the requested lesson plans. Sandie Decl. Ex. 2, at 3. After Sandie was released from the hospital on Monday, February 20, 2017, Morton requested that Sandie attend a meeting at George Fox the next day. Sandie Decl. at ¶ 24. When Sandie informed Morton she was still sick, Morton changed the meeting to video conference. Id. During the February 21, 2017 video conference, Morton terminated Sandie's placement with Blake. Id. at ¶ 25. During the video conference, Morton also presented Sandie with a document titled "Contract" which provided that Sandie's new practicum placement would begin on March 13, 2017, and which included the statement that the "Contract" served "to outline the requirements of [Sandie's] successful completion of" her practicum and if Sandie did not make progress in her new placement by April 17, 2017, she would need to redo the practicum that fall term at her own expense. Sandie Decl. Ex. 3, at 1. Sandie did not sign the "Contract." Id. Sandie did not ask to be removed from the placement with Blake. Sandie Decl. at ¶ 26.
C. Placement with Colleen McCombs
Sandie was scheduled to begin her second practicum placement on March 13, 2017. Sandie Decl. at ¶ 26. George Fox placed Sandie with Colleen McCombs ("McCombs"). Id. at ¶ 28. On March 7, 2017, Sandie participated in the three-way meeting outlined in the Practicum Guidelines. Sandie Decl. Ex. 4, at 1; Bering Decl. Ex. 2, at 16. George Fox informed Sandie that her practicum would last until June 20, 2017. Sandie Decl. Ex. 4, at 1.
Sandie's placement with McCombs encountered difficulties. McCombs, who was planning her wedding at the time of Sandie's placement, was unable to meet with Sandie before or after school prior to March 24. Sandie Decl. at ¶ 32. Before McCombs's wedding, which had been set for March, 24, 2017, McCombs asked Sandie if she would like to take over all lessons after the student's returned from spring break on April 3, 2017. Id. at ¶ 33. On Friday, April 7, McCombs received a phone call about an emergency at her home and left Sandie in charge of the classroom. Id. at ¶ 35. While McCombs was gone, there was a power outage; Sandie used the power outage to teach a lesson on shadows. Id. Part of the lesson involved the students getting up from their chairs and performing sketches they had written which left the classroom disorganized. Id. When McCombs returned to the classroom and found it was disorganized, she expressed her frustration to Sandie but complimented her on the lesson. Id.
On April 19, 2017, McCombs confronted Sandie in an angry manner just before students began entering the classroom. Sandie Decl. at ¶ 37. The parties disagree about what occurred next. According to Sandie, McCombs, "visibly upset," asserted the students' behavior in the classroom was "out of control" and she blamed Sandie for it. Id. McCombs then instructed Sandie to observe three other teachers to see the techniques that they used for classroom management. Id. at ¶ 37. Sandie stated she "did not feel safe in the classroom with [McCombs] at that time," and that she "asked McCombs for permission to step out of the classroom" so that she could "recover from her criticism and accusations." Id. at ¶ 38. Sandie left the classroom and went to her car. Id. She left "all of [her] supplies and other personal belongings in the classroom, with the exception of [her] backpack[.]" Id. McCombs testified to a different account, stating that Sandie "said she was done", was "not willing to see the other three teachers," took her textbooks out of her backpack and threw them on McCombs's table, and "stormed out of the classroom." Volpert Decl. Ex. 4, at 4.
D. Termination
When Sandie got to her car, she sent Henry a text message: "Hi Rachel Can we talk this morning. I am pulling myself together after a very difficult conversation with Colleen. I intend to go back to my placement as soon as I am able." Sandie Decl. Ex. 5. Sandie also send an email to Englen to inform him of the situation. Sandie Decl. Ex. 6. Englen forwarded Sandie's email to Henry and Morton. Id.; Sandie Decl. at ¶ 42. Henry then called Sandie to inform her that her practicum with McCombs was terminated and that Sandie needed to attend a meeting with Henry, Englen, and Morton that afternoon. Sandie Decl. at ¶ 43. At the meeting on April 19, 2017, George Fox dismissed Sandie from the MAT Program. Sandie Decl. at ¶ 44.
On Thursday, April 20, 2017, Morton sent Sandie the following email:
Amy,
Attached, please find a copy of the letter of concern and the contract. Your letter of dismissal will be sent to your home.
Your letter of concern and the subsequent contract addressed your deficiencies. In addition, GFU provided you with additional supervision time and observations in an effort to support your growth and eliminate the deficiencies. You were also provided with a new placement to support your needs.
In [the Program Guide] you will find the following at the bottom of page 22:
Please Note: If the candidate is being suspended due to grades and/or dismissed due to gross violation of professional ethics, behaviors, and values, then the above procedures may be truncated and dismissal may be immediate.Sandie Decl. Ex. 7. Sandie filed a timely appeal on May 16, 2017. Sandie Decl. at ¶ 46. On June 7, 2017, George Fox denied her appeal. Id. Instead, George Fox offered to return Sandie to the MAT Program in fall 2017 "for a final attempt to show proficiency in the program." Id. Sandie denied the offer. Id. at ¶ 47.
Because you walked out of your placement, your actions were determined to fit the criteria for immediate dismissal. However, we are offering you the opportunity to appeal.
III. Issues
Sandie asserts against George Fox claims of breach of contract, breach of the covenant of good faith and fair dealing, negligence, and violation of federal disability laws. Am. Compl., ECF No. 29. George Fox moves for summary judgment against all of Sandie's claims. George Fox "maintains [Sandie] was dismissed from the MAT Program as a result of her walk-out from her practicum classroom and program." Mot. at 2. Further, George Fox argues that under its "policies and procedures, [Sandie]'s walkout and abandonment of her practicum placement was egregious, and her dismissal was not a violation of any duty or obligation owed to Plaintiff, nor was it a violation of the Rehabilitation Act." Id.
Standard
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); Wash . Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). The moving party must show the absence of a dispute as to a material fact. Rivera v . Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id . The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v . Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). 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).
A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarmo v . Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)(quoting Anderson v . Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it could affect the outcome of the case. Riviera , 395 F.3d at 1146 (citing Anderson , 477 U.S. at 248). The substantive law governing a claim or defense determines whether a fact is material. Miller v . Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]" Anderson , 477 U.S. at 255. A trial judge should act with caution in granting summary judgment and may deny summary judgment when there is reason to believe that the better course would be to proceed to trial. Id .
Discussion
I. Contract Claim
Sandie contends that she and George Fox had a contract and George Fox breached its express terms and the implied covenant of good faith and fair dealing implied in every contract under Oregon law. Am. Compl. at ¶ 40-49.
George Fox contends that "[u]nder Oregon law, to succeed with a breach of contract claim, a plaintiff must demonstrate the existence of a valid contract, a breach of that contract, and damages as a result." Mot. at 16 (citing Pendleton Grain Growers v . Pedro, 271 Or. 24, 27 (1975)). George Fox argues Sandie cannot demonstrate an enforceable contract exists. Id. Specifically, George Fox argues Sandie alleges only that George Fox was "utilizing" the Program Guide and Practicum Guidelines, and it observes she does not allege George Fox relied upon these documents for administering her education. Id. at 16-17. Additionally, George Fox asserts that even if a contract exists, Sandie's claim fails because George Fox complied with its own procedures and the reason Sandie was removed from the MAT Program was because she walked out and abandoned her classroom. Id.
Sandie asserts "[t]hat there are several contractual promises at issue here." Pl.'s Memo. Opp. Mot. Summ. J, ECF No. 45 ("Memo. Opp."), 17. First, Sandie contends "the transaction in which plaintiff agreed to payment of tuition for educational services is contractual in nature." Id. (citing Vejo v . Portland Public Sch., 204 F. Supp. 3d 1149, 1175 (D. Or. 2016). Second, Sandie asserts the Program Guide and Practicum Guidelines constituted contracts between Sandie and George Fox, and George Fox breached these contracts. Id. Third, Sandie contends "both the contract that exists by virtue of the basic relationship between a student and a private university and the contractual promises created by the Program Guide and Guidelines for Clinical Practice in Education contain implied covenants of good faith and fair dealing." Id. at 17-18.
A. Type of Contract
1. Student/University Contract
It is generally accepted in Oregon that the student-university relationship is essentially contractual in nature. Vejo , 204 F. Supp. 3d at 1175. Oregon courts have acknowledged that payment of tuition may form a contract for educational services between the student and the school. Doe v . Univ. of Or., Case No. 6:17-cv-01103-AA, 2018 WL 1474531 at *11 (D. Or. March 26, 2018) (citing Tate v . N. Pac. C., 70 Or. 160 (1914)). Other contracts also may be at play.
"Oregon law also 'recognizes that 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.'" Vejo , 204 F. Supp. 3d at 1175 (citing Dauven v . George Fox Univ., No. CV. 09-305-PK, 2010 WL 6089077 (D. Or. Dec. 3, 2010))(emphasis in original)(emphasis added)). Judge Aiken's choice of language in Vejo is important here. Judge Aiken's use of "may" and "also" implies that in addition to the contract that may exist for payment of tuition, a separate contract "based on the terms contained in publications that the university provides to the student" may also exist. Id . At the very least, the "publications that the university provides to the student," id ., may inform the duties under the contractual relationship between student and university that could exist based on matriculation alone:
[T]he enforceability of provisions in handbooks and catalogs depends on the specific facts of each case. . . . The relevant inquiry is whether a party's communications and overt acts suggest it manifested assent to be bound by a promise. Whether a statement or act is a manifestation of assent is a question of
fact.Id . (citing Gibson v . Walden Univ., LLC, 66 F.Supp.3d 1322, 1324-25 (D. Or. 2014); Kabil Developments Corp . v. Mignot, 279 Or. 151, 156-57 (1977))(internal citations) (internal punctuations omitted).
Taking the facts in the light most favorable to Sandie, a contract based on her payment of tuition to George Fox could exist. The court now examines the nature of that possible contract.
2. Implied-in-Fact Contract
"Whether a statement or act is a manifestation of assent" to be bound by a contract is the basis of an implied-in-fact contract. Vejo , 204 F. Supp. 3d at 1175; see Gadalean v . SAIF Corp. , 364 Or. 707, 717 n. 3 (2019). In an implied-in-fact contract, the parties' agreement is inferred, in whole or in part, from their conduct. Gadalean , 364 Or. at 717 n.3 (citing Larisa's Home Care , LLC v. Nichols-Shields, 362 Or. 115, 129 n.5 (2017)). A contract "implied in fact arises 'where the natural and just interpretation of the acts of the parties warrants such [a] conclusion.'" Id . (citing Owen v . Bradley, 231 Or. 94, 103 (1962)). Conduct from which an implied-in-fact contract may be inferred is not limited to conduct by parties at the outset of the relationship, "such a limitation would belie the very nature of the implied-in-fact doctrine as recognizing that parties may manifest their assent to an agreement through their actions over an extended period of time." Montez v . Roloff Farms, Inc., 175 Or. App. 532, 536-537 (2001).
As Judge Aiken stated in Vejo, "[w]hether a statement or act is a manifestation of assent is a question of fact." Thus, regardless of the Program Guide's proviso that the document was "NOT a contract," George Fox's actions over an extended period of time could have created an implied-in-fact contract. Here, George Fox acknowledges it followed the Program Guide and Practicum Guidelines and, indeed, in most respects the evidence shows that it did, and for Sandie as well. Both parties behaved as if the Program Guide and Practicum Guidelines informed their conduct. Sandie took all the courses outlined and explained in the documents, and George Fox administered them. Sandie passed her courses, and George Fox allowed her to begin her practicum. When George Fox alleged Sandie's performance in her practicum fell below standards, it implemented the performance contract called for in these documents. There is no evidence that either party behaved contrary to the Program Guide or Practicum Guidelines. A reasonable juror could infer assent to be bound from George Fox's conduct. Thus, a genuine issue of material fact exists whether an implied-in-fact contract arose between Sandie and George Fox. George Fox's motion for summary judgment on Sandie's breach of contract claim should be denied.
3. Express Contract
"In an express contract, the parties manifest their agreement by their words, whether written or spoken." Mindful Insights , LLC v. VerifyValid, LLC, 301 Or. App. 256, 266 (2019) (citing Staley v . Taylor, 165 Or. App. 256, 262 (2000)). There are two written documents that could constitute either contracts that are separate and distinct from the contract that exists as a result of Sandie's matriculation: (1) the Program Guide and (2) the Practicum Guidelines. On July 12, 2016, Sandie signed the Program Guide and acknowledged that the document was not a contract, but George Fox concedes it followed the Program Guide. Thus, regardless of the acknowledgement, if George Fox's actions were manifestations of the words written in the Program Guide, the document functioned as an express contract. A similar conclusion applies to the Practicum Guidelines. A reasonable juror could infer that George Fox's actions were manifestations of the words written in the Program Guide and Practicum Guidelines. Therefore, there is a genuine issue of material fact as to whether an express contract exists between Sandie and George Fox. George Fox's motion for summary judgment on Sandie's breach of contract claim should be denied.
B. Breach of Contract
George Fox maintains that it terminated Sandie from the MAT Program because she walked out and abandoned her classroom. Mot. at 2. Specifically, George Fox contends that Sandie "egregiously" violated "professional ethics, behaviors, and values[,]" and that this was grounds for her immediate termination from the program. Id.
Under the Program Guide, "[i]f the candidate is being suspended due to grades and/or dismissed due to gross violation of professional ethics, behaviors, and values . . . dismissal may be immediate." Bering Decl. Ex. 1, at 21 (emphasis added). Reading the facts in the light most favorable to Sandie, and, therefore, assuming either an implied-in-fact or express contract exists under the Program Guide, suspension or dismissal for anything other than a "gross violation of professional ethics, behaviors, and values" would constitute a breach by George Fox. What, then, is a "gross violation"?
Looking to the Program Guide, there are only two places that might lead to the answer to this question. First, the Program Guide contains a summary of teaching standards:
Professional Learning and Ethical Practice. The teacher engages in ongoing professional learning and uses evidence to continually evaluate his/her practice, particularly the effects of his/her choices and actions on others (learners, families, other professionals, and the community), and adapts practice to meet the needs of each learner.Bering Decl. Ex 1 at 9. While helpful to a Teacher Candidate seeking to meet teaching standards, this does not help determine what a "gross violation" would constitute. However, the Program Guide also contains the following section:
UNPROFESSIONAL BEHAVIORS, ETHICS AND VALUES
Candidates who egregiously offend TSPC behavioral and ethical standards may be
suspended from the program and/or teaching experience immediately until evidence is collected and a decision is made by the MAT Review and Retention Committee. Any decision by the MAT Review and Retention Committee may be appealed to the Chair of Graduate Teacher Education. Final appeals will be directed to the Dean of the College of Education.Bering Decl. Ex. 1, at 21. This section implies that a "gross violation of professional ethics, behaviors, and values" would be an egregious offense of the behavioral and ethical standards adopted by the Teacher Standards & Practices Commission ("TSPC").
If, during the course of the MAT program, a candidate is charged with a crime that is either listed in ORS 342.143 and/or ORS 342.175 as reason for a teaching license to be denied or revoked or is in violation of TSPC's guidelines for "Competent and Ethical Performance of Oregon Educators" (OAR 584-020-0000), then the teacher candidate will be suspended from practicum experiences immediately and will not be allowed to enter the school site facilities; such a candidate will not be allowed to continue the field experience until cleared from the charge(s). If the teacher candidate is convicted of such crimes, he/she will be immediately dismissed from the program.
As the section makes clear, the behavioral and ethical standards adopted by the TSCP are those contained in Oregon Revised Statutes §§ 342.143, 342.175 and Oregon Administrative Rule 584-020-0000. Both § 342.143 and § 342.175 deal with the issuance, revocation, and denial of a teaching license. For example, both statutes list a series of crimes which, if the teacher was convicted, would be grounds for revocation or denial of a teaching license. OR. REV. STAT. §§ 342.143, 342.175. From these two statutes, it can be inferred that commission of the crimes listed in the statutes would constitute an egregious offense of TSPC behavioral and ethical standards and would therefore qualify as a "gross violation." However, there is no evidence that commission of a crime was in anyway the reason for Sandie's dismissal from the MAT Program. George Fox maintains that the only reason for Sandie's dismissal was her walk-out from her McComb's classroom.
Oregon Administrative Rule 584-2020-0000 states that "OAR 584-020-0005 through 584- 020-0045 may be used as criteria by the Teacher Standards and Practices Commission in matters pertaining to the revocation or suspension of licenses or registrations issued by the Commission under ORS 342.120 to 342.200[.]" OR. ADMIN R. 584-2020-0000(2). Thus, Rule 584-020-0035 and Rule 584-020-0040 provide guidance. Rule 584-020-0035 describes a teacher's ethical obligations. OR. ADMIN R. 584-2020-0035. It could be inferred that failure to meet an obligation described in Rule 584-020-0035 constitutes a violation of "professional ethics, behaviors, and values[,]" but that then does not mean that the violation was "gross." Rule 584-020-0040 describes the grounds for disciplinary action. OR. ADMIN R. 584-2020-0040. Similarly to Rule 584-020-0035, what constitutes grounds for disciplinary action could be a violation of "professional ethics, behaviors, and values[.]" But, again, that does not mean that the violation was "gross."
The Program Guide does not provide guidance as to what constitutes a "gross violation." Neither do the Oregon laws and administrative rules the Program Guide points to. There is a genuine issue of material fact as to what constitutes a "gross violation of professional ethics, behaviors, and values[.]" Therefore, there is a genuine issue of material fact as to whether the Program Guide was breached. For these reasons, George Fox's motion for summary judgment on Sandie's breach of contract claim should be denied.
C. Implied Duty of Good Faith and Fair Dealing
Oregon courts have held that "every contract contains an implied duty of good faith" and fair dealing. Uptown Heights Assocs . v. Seafirst Corp., 320 Or. 638, 645 (1995). Thus, no party to a contract may behave in a manner that will destroy or injure the right of another party to receive the fruits of the contract. Perkins v . Standard Oil Co., 235 Or. 7, 16 (1963). The duty of good faith instructs parties to a contract to behave in a manner that will effectuate the reasonable contractual expectations of the parties. Uptown Heights , 320 Or. at 645. When determining breach of the duty of good faith, a court will look to "only the objectively reasonable expectations of the parties that will be examined in determining whether the obligation of good faith has been met." Id . (citing Tolbert v . First Nat'l Bank, 312 Or. 485, 494 (1991))(internal quotations omitted). Additionally, "the duty of good faith cannot serve to contradict an express contractual term[.]" Id .
Here, as discussed above, there is a genuine issue of material fact as to the nature of the contract, or contracts, that exists. If the Program Guide and Practicum Guidelines are found to be contracts, either in their own right or as documents that inform the duties under contract that exists due to Sandie's student-university relationship with George Fox, the contract or contracts could be express. Therefore, the duty of good faith and fair dealing could not contradict the terms of the contract. However, before a court can determine this, or even whether the parties did not behave in a manner that effectuated the reasonable contractual expectations of the parties, the nature of the existing contract or contracts must first be established. Therefore, George Fox's motion for summary judgment on Sandie's breach of the implied duty of good faith and fair dealing should be denied.
II. Negligence Claim
Sandie alleges that George Fox "owe[s] a special responsibility and duty toward George Fox students, including [Sandie]." Am. Compl. at ¶ 41. Sandie claims the "special responsibility and duty imposes on George Fox a duty to take heightened care in selecting such practicum teachers, in training them, in monitoring the day to day activities in each practicum and in providing practicum teachers with discernable standards for evaluating student performance." Id. Sandie concludes George Fox violated this duty and was, therefore, negligent. Id. at 10-11. George Fox seeks summary judgment on this claim, asserting Sandie's "claim for negligence fails as a matter of law under (1) the independent duty doctrine and (2) notwithstanding the application of the independent duty doctrine, [Sandie]'s claims fail on the merits because the University is provided with deference to its academic decisions." Mot. at 11-15.
Sandie argues George Fox points to nothing in the contract, assuming one exists, that limits or forecloses her negligence claims. Memo. Opp. at 32. Sandie further argues a plaintiff suing for breach of contract may also sue in tort. Id. In response, George Fox argues Sandie does not dispute the independent duty doctrine bars her negligence claim. Reply at 15. Because Sandie does not allege physical injury or property damage, her "negligence claim is effectively a claim for negligent infliction of emotional distress, which is not cognizable unless a special relationship exists between the parties." Id. George Fox further contends Sandie fails to establish a special relationship exists, and, specifically, the relationship between a student and university is not a special relationship, but instead, an arm's-length relationship. Id. at 16-18.
To state a claim for negligence in Oregon, a plaintiff must allege:
(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons and plaintiffs injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.Clement v . Ecolab, Inc., 341 F. Supp. 3d 1205, 1214 (D. Or. 2018) (quoting Solberg v . Johnson, 306 Or. 484, 490-491 (1988)). A party may bring a claim for negligence in addition to contract claim if the other party is subject to a standard of care independent of the terms of the contract. Anderson v . Bank of America, N.A., No: 3:13-cv-1660-AC, N.A., 2014 WL 463122, at *8 (D. Or. September 12, 2014) (citing Georgetown Realty , Inc. v. Home Ins. Co., 313 Or. 97, 106 (1992)).
If the plaintiff's claim is based solely on a breach of a provision in the contract, which itself spells out the party's obligation, then the remedy normally will be only in contract, with contract measures of damages and contract statutes of limitation. That is so whether the breach of contract was negligent, intentional, or otherwise. In some situations, a party may be able to rely on either a contract theory or a tort theory or both.Id . (citing Georgetown , 313 Or. at 106). Where a relationship creates a standard of care independent of a contract, such as the relationship between a patient and a doctor or insurer and insured, a party may bring a negligence and contract claim because, based on the relationships, one party relies on the other to perform to a heightened standard. Id . at *8 (citing Georgetown , 313 Or. at 110-11). "Once an independent duty is found, it is actionable unless limited by the terms of the parties' contract." Id . (citing Abraham v . T. Henry Const., Inc., 350 Or. 29, 40-41 (2011)). When student athletes were accused of sexual assault, a university rendering academic code of conduct decisions was not found to have a special relationship with those students. Austin v . Univ. of Oregon, 205 F. Supp. 3d 1214, 1229 (D. Or. 2016), aff'd, 925 F.3d 1133 (9th Cir. 2019). Instead, that relationship was "characterized as little more than an arm's-length relationship intent on securing divergent rather than joint interests." Id .
The relationship between Sandie and George Fox is the same as that in Austin, it is the relationship between student and university, i.e. it is an arm's length relationship. Thus, George Fox does not owe Sandie a heightened standard of care and she is barred from bringing a negligence claim. Therefore, George Fox's motion for summary judgment on Sandie's negligence claim should be granted. As a result, the court need not, and will not, address George Fox's academic deference argument.
III. Disability Claim
Sandie alleges George Fox's treatment of her, including while she was in hospital, violated Section 504 of the Rehabilitation Act of 1973 (the "Rehabilitation Act") and the Americans with Disabilities Act (the "ADA"). Am. Compl. at ¶ 50-54. Specifically, Sandie contends the "unreasonable demands requiring [Sandie] to devote 20 hours preparing formal lesson plans from her hospital bed violate her accommodation" and George Fox punished Sandie for "needing an accommodation for her asthma attack[.]" Memo. Opp. at 30, 32.
George Fox argues Sandie's claims for violation of federal disability laws fail because George Fox "fulfilled its obligations regarding [Sandie]'s disabilities" and because George Fox is entitled to deference with respect to its "decision to terminate Plaintiff from the practicum program. . . ." Mot. at 18. George Fox contends that it terminated Sandie from the MAT Program because she walked out of the practicum, not because of her asthma attack. Id. Specifically, George Fox asserts Sandie's "asthmatic episode in February occurred two months before she chose to [walk out] and abandon the program. The walkout and abandonment had nothing to do with any request for an accommodation." Id. at 21. Finally, George Fox contends Sandie "never requested an accommodation due to her asthma" after her asthma attack and hospitalization, "[r]ather, she indicated that she would be at school the next day and would 'still complete the lesson plans for the week.'" Reply at 15.
The Rehabilitation Act requires that no "otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]" 29 U.S.C. § 794(a) (2020). To state a claim under the Rehabilitation Act, 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." Breyer v . Pac. Univ, Case No. 3:17-cv-0036-AC, 2020 WL 1161434, at *19 (D. Or. March 10, 2020) (citing Duvall v . County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)). Additionally,
[a] plaintiff cannot recover monetary damages under Section 504 unless the defendant engaged in intentional discrimination. 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. Even if intentional discrimination can be established, punitive damages are not an available remedy under Section 504.Id . (internal citations omitted)(internal punctuation omitted)(citing Duvall , 206 F.3d at 1138; City of Canton v . Harris, 489 U.S. 378, 389 (1988); Barnes v . Gorman, 536 U.S. 181, 189 (2002)). "The term 'program or activity' means all of the operations of . . . a college, university, or other postsecondary institution, or a public system of higher education[.]" 29 U.S.C. § 794 (b)(2)(A).
Under the Rehabilitation Act, a person with a disability "has a physical or mental impairment which substantially limits one or more major life activities." 45 C.F.R. § 84.3(j) (2020); see also 29 U.S.C. § 794(a) (citing 29 U.S.C. § 705(20) (2020)). "With respect to postsecondary and vocational education services," a "qualified person" with a "technical disability[,]" is a person "who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity." 45 C.F.R. § 84.3(l)(3).
ADA and the Rehabilitation Act claims are analyzed jointly because "there is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act." Breyer , 2020 WL 1161434 at *18 (citing Zukle v . Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999)). Therefore, this court will analyze Sandie's disability claims together and "[incorporate] judicial interpretation of the Rehabilitation Act when appropriate to evaluate the various rights and obligations implicated under the ADA." Id .
Title III of the ADA "broadens the reach of the protections enacted by" the Rehabilitation Act. Id . Thus, it guarantees persons with disabilities full and equal enjoyment of any place of public accommodation, rather than mere access. Id . (citing Baughman v . Walt Disney World Co., 685 F.3d 1131, 1135 (2012)). A postgraduate private school is a place of public accommodation under Title III. 42 U.S.C. § 12181(7)(J) (2020).
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.Breyer , 2020 WL 1161434 at *19 (citing Molski v . M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)). A plaintiff may only sue for injunctive relief under Title III. Ervine v . Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014). "Damages are not an available remedy under Title III." Breyer , WL 1161434 at *19 (citing 42 U.S.C. § 12188(a)(1) (2020)).
George Fox is the recipient of federal funds. George Fox is a place of public accommodation. George Fox acknowledged Sandie's disability and granted her an accommodation. The only remaining issue is whether she "was excluded from or denied the benefits of the program solely on the basis of her disability," or for the purposes of the Rehabilitation Act, whether she was denied public accommodations by the defendant because of her disability. Said another way, the issue is whether George Fox discriminated against Sandie on the basis of her disability. At the motion for summary judgment stage, this court must decide if, viewing all the evidence in the light most favorable to the non-moving party, there is a genuine issue of material fact that Sandie was discriminated against on the basis of her disability.
"The term 'discrimination' is not directly or consistently defined by the [Rehabilitation Act and ADA]." Breyer , 2020 WL 1161434 at *20. Title III contains both general and specific prohibitions, violations of which constitute discrimination. 42 U.S.C. § 12182(b)(1-2)(2020). General prohibitions include "denying persons with disabilities participation, affording persons with disabilities participation in an unequal benefit, or providing a separate benefit on the basis of disability." Breyer , 2020 WL 1161434 at *20 (citing 42 U.S.C. § 12182(b)(1)(A)(i)-(iii)). Specific prohibitions include "imposing eligibility criteria that disproportionately screens out individuals with disabilities, failing to make reasonable modifications in policies or practices when such modifications are necessary to afford persons with disabilities access to the benefit offered, and a failure to provide auxiliary aids and services." Id . (citing 42 U.S.C. § 12182(b)(2)(A)(i)-(iii)). Discrimination under the Rehabilitation Act occurs when a person with a qualified disability is "excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]" 29 U.S.C. § 794(a) (2020). While these are examples of specific instances of discrimination under the Rehabilitation Act and the ADA, they are not exhaustive because "[t]he term 'discrimination' is not directly or consistently defined by the [Rehabilitation Act and ADA]." Breyer , 2020 WL 1161434 at *20. Discrimination thus extends beyond these specific examples and to conduct that interferes with a qualified disabled person's "full and equal enjoyment . . . any place of public accommodation." Id . at *19 (citing Chapman v . Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011)); 42 U.S.C. § 12182(a) (2020).
Sandie alleges two specific acts of discrimination by George Fox: (1) "requiring [Sandie] to devote 20 hours preparing formal lesson plans from her hospital bed" which would violate her accommodation, and (2) punishing Sandie for "needing an accommodation for her asthma attack." Memo. Opp. at 30, 32. The court must now determine if there is a genuine issue of material fact as to whether either or both of these two instances constitute discriminatory conduct on the part of George Fox.
George Fox granted Sandie accommodations for her asthma in the form of "flexibility with leaving class or taking breaks." These accommodations applied to the classes on the George Fox campus and in the practicum. The general demand for lesson plans did not violate any general or specific prohibition against discrimination. There is no evidence the impetus behind "the demands" requiring Sandie to submit lesson plans had anything to do with her disability. The demand for lesson plans did not deny Sandie participation in anything, afford Sandie an unequal benefit, nor provide Sandie a separate benefit on the basis of her disability. It did not impose "eligibility criteria that disproportionately screens out individuals with disabilities," fail "to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford" Sandie "access to [a] benefit offered," or fail "to provide auxiliary aids and services." Additionally, the demand for lesson plans did not interfere with Sandie's "full and equal enjoyment" of any "place of public accommodation," namely George Fox. Finally, there is no evidence George Fox "punished" Sandie because of her asthma attack. As noted by George Fox, Sandie's "asthmatic episode in February occurred two months before she chose to [walk out] and abandon the program. The walkout and abandonment had nothing to do with any request for an accommodation." Mot. at 21.
While a reasonable juror might indeed find George Fox's demands for lesson plans were unreasonable given that Sandie was hospitalized when they were requested, the demands do not rise to level of discriminatory conduct. George Fox fulfilled its obligations regarding Sandie's disability—Sandie requested an accommodation and George Fox granted it. Sandie did not request further accommodation at any time or raise concerns as to the scope of the accommodation granted. Finally, there is no evidence George Fox took Sandie's disability into account when making the decision to terminate Sandie from the MAT Program, or at any time during Sandie's time in the MAT Program, beyond facilitating and implementing her accommodation. Therefore, Sandie has failed to present any evidence that George Fox discriminated against her in violation of the Rehabilitation Act or the ADA. George Fox's motion for summary judgment on Sandie's disability claim should be granted.
Conclusion
For the reasons above, George Fox's motion should be GRANTED with regard to Sandie's disability claim and negligence claim and DENIED with regard to Sandie's claims for breach of contract and breach of the covenant of good faith and fair dealing.
Scheduling Order
The Findings and Recommendation will be referred to a district judge for review. Objections, if any, are due within seventeen (17) days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 11th day of March, 2021.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge