Snell v. Mccauley Potter Fain Assocs.

RENEE M. SNELL, Plaintiff, v. MCCAULEY POTTER FAIN ASSOCIATES, et al., Defendants.

Case No. 3:18-cv-227-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

July 18, 2018

ORDER

Michael H. Simon, District Judge.

Plaintiff Renee M. Snell sues McCauley Potter Fain Associates ("MPFA") and the Oregon Department of Human Services ("DHS"). Plaintiff's claim arises out of Vocational Rehabilitation ("VR") services she received. Before the Court are two motions: MPFA's motion for summary judgment, and DHS' motion to dismiss or, in the alternative, for a more definite statement of Plaintiff's claims.

BACKGROUND

In order to understand Plaintiff's Complaint, some background on Oregon's vocational rehabilitation ("VR") services is helpful. VR is the office designated by the State of Oregon to administer comprehensive vocational rehabilitation services for individuals with disabilities under the federal Rehabilitation Act of 1973. An individual who receives or is eligible to receive these services is often referred to as a "VR client." Generally, after determining eligibility, VR prepares an "individualized plan for employment" ("IPE"), which governs and informs the services that will be provided. 34 C.F.R. § 361.45(a). An IPE must be reviewed at least annually by the VR, and amended if necessary. 34 C.F.R. § 361.45(d)(5)-(6). The IPE, and any amendments to it, must be agreed to by the client and the VR. 34 C.F.R. § 361.45(d)(3), (7).

Under federal and state laws governing VR procedures, see 29 U.S.C. § 722(c); OAR 582-020, a VR client may request a hearing to contest any decision by VR that affects the provision of vocational rehabilitation services. This hearing is first held before an Impartial Hearing Office ("IHO"), who issues a decision that becomes final unless either the client or the VR requests "Formal Administrative Review." In that review, a Reviewing Official performs an administrative review of the IHO decision and issues what becomes the VR's final order. A VR client may seek judicial review of the VR's final order in the Oregon Court of Appeals, see ORS 183.482, or may file a civil action for review of the final order pursuant to 29 U.S.C. § 722(c)(5)(J).

Plaintiff's pro se Complaint does not provide a narrative background to the events giving rise to her claims. Plaintiff does, however, submit numerous documents with her Complaint, including a Decision and Final Order dated January 5, 2018, by Robert Trachtenberg, a Reviewing Official, ("January 2018 Order"), which provides informative background. ECF 1-4. According to that Decision and Final Order, in February 2017, Plaintiff was referred to work with a job developer from MPFA, Rob Howell. ECF 1-4 at 5-6. Defendant MPFA was under contract with VR to provide such services. Id.; see also ECF 1-3 at 55. Typically, a VR client and job developer like Howell would first create a Job Placement Strategy Report, which wouldset out employment goals and determine strategies for obtaining work for the VR client. ECF 1-4 at 6. Without a Job Placement Strategy Report, Howell could not be paid for his work. Id. Despite Howell writing three drafts, Plaintiff and Howell were unable to reach agreement on a Job Placement Strategy Report, and, thus, none was ever signed. Id. Howell wrote to VR employees stating that he and his company had decided to discontinue services for Plaintiff due to the inability to agree on a Job Placement Strategy Report. Id. Two VR employees met with Plaintiff to discuss the matter. During this meeting, the VR employees noted that Howell had been the third vendor to withdraw from working with Plaintiff. The VR employees ultimately told Plaintiff that, in order to continue serving her, they would need to obtain a neuropsychological assessment of Plaintiff to understand Plaintiff's barriers to working with VR and to finding employment. Id. at 7-9.¹ The Reviewing Official concluded that VR did not improperly deny services under Plaintiff's IPE, that VR did not breach its agreement with Plaintiff by requiring a neurological assessment, and that the closure of Plaintiff's case should be affirmed. ECF 1-4 at 10-11.

Plaintiff's pro se Complaint, and the claims she brings, are difficult to understand. Plaintiff's Complaint characterizes her claim as arising under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and specifically under Section 794(a), which prohibits discrimination on the basis of disability in "any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . ." In her first claim, Plaintiff states that the January 2018 Order misrepresents DHS' contract, appearing to refer to DHS' contract with MPFA. In her second claim, Plaintiff states that DHS improperly excused negligence in the administration of the federally-funded VR program by making "type of disability" a basis onwhich to not comply with applicable contract terms, resulting in discrimination on the basis of certain types of disability. Plaintiff's Complaint also alleges various mistakes in or issues with the services that she received. In responsive briefings, Plaintiff asserts that she is also suing for breach of contract based on these issues, relying on a contract between DHS and MPFA.

DISCUSSION

A. MPFA's Motion for Summary Judgment

Plaintiff's Complaint does not clearly identify her claims against MPFA. Although Plaintiff characterizes her Complaint as arising under the Rehabilitation Act, in response to MPFA's motion for summary judgment, Plaintiff states that her Complaint does not suggest that MPFA "directly participated in any discriminatory acts." ECF 17 at 6. Rather, Plaintiff asserts, MPFA breached its contractual agreement with DHS. Liberally construing Plaintiff's pro se Complaint, the Court discusses both Rehabilitation Act and breach of contract claims against MPFA.

A party is entitled to summary judgment if the "movant shows that 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). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find forthe non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted). In support of its motion for summary judgment, MPFA relies on the documents attached to Plaintiff's Complaint as well as the declaration of Rob Howell (ECF 16).

1. Discrimination Claim

The Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a). To establish a violation of § 794, Plaintiff:

[M]ust show (1) that [s]he is handicapped within the meaning of the act, (2) that [s]he is "otherwise qualified" for the services sought, (3) that [s]he was excluded from the services sought "solely by reason of [her] handicap," and (4) that the program in question receives federal financial assistance.

Dempsey By & Through Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir. 1987). Claims for damages under § 794 further require a showing of discriminatory intent. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998).

Plaintiff provides no evidence to support the assertion that Defendant MPFA discriminated against her on the basis of disability.² In fact, as discussed above, Plaintiff acknowledges that her Complaint itself does not suggest that MPFA "directly" discriminated against her. To the extent Plaintiff suggests that MPFA indirectly participated in discriminatoryacts, Plaintiff points to no such evidence. To the extent Plaintiff brings a claim against MPFA arising under the Rehabilitation Act, that claim is dismissed with prejudice.

2. Breach of Contract Claim

Plaintiff also argues that MPFA breached its contract with DHS, which Plaintiff attaches to her Complaint (see ECF 1-3 at 55). The contract between DHS and MPFA, however, explicitly provides:

No Third Party Beneficiaries. DHS and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, is intended to give, or shall be construed to give or provide any benefit or right, whether directly, indirectly or otherwise, to third persons any greater than the rights and benefits enjoyed by the general public unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

ECF 1-3 at 95. Plaintiff therefore has no standing to sue to enforce the contract between DHS and MPFA. See Sisters of St. Joseph v. Russell, 318 Or. 370, 374-75 (1994) ("If the third party has paid no value and there is no intention to confer a contract right on that party, then the party is an incidental beneficiary who is...