that the defendants purposefully discriminated against her” because of her protected status.
Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). Likewise, to prevail on a claim
under section § 659A.403, a plaintiff must show that the plaintiff “was treated in an ‘unequal’
manner because of [a protected status] and that “that treatment resulted in an injury[.]”? Allen v.
U.S. Bancorp, 264 F. Supp. 2d 945, 954 (D. Or. 2003) (quoting King v. Greyhound Lines, 656
P.2d 349, 352 (Or. Ct. App. 1982)). In its prior Order, this Court determined that plaintiff had
presented sufficient evidence that defendants had intentionally discriminated against her. Vejo,
204 F. Supp. 3d. at 1173. That determination was central to this Court’s denial of qualified
immunity on plaintiffs equal protection claims against Callin and Cooper and denial of
summary judgment on plaintiff's state law public accommodation claims against defendants. Id.
at 1174-75.

On appeal the Ninth Circuit held that plaintiff's evidence was insufficient to establish that
either Callin or Cooper had committed an equal protection violation. The court concluded that
plaintiff “presented no evidence suggesting that Callin terminated [her] because of [her] national
origin or religion.” Vejo, 737 F. App’x at 311. With respect to Cooper, the court concluded that
plaintiff “failed to establish a causal link between the alleged discrimination and a protected
ground[.]” Jd. at 312. The court emphasized that, in context, Cooper’s statements were
insufficient to establish intentional discrimination. /d. Because plaintiff failed to show an equal
protection violation, the court concluded that Callin and Cooper were entitled to qualified
immunity without considering whether the right at issue was “clearly established.” See id.
(citing Pearson vy. Callahan, 555 U.S. 223, 232 (2009) (observing that in every qualified
immunity case “whether the facts alleged show the [defendant’s] conduct violated a

constitutional right . . . must be the initial inquiry” and that a court may only consider whether

Page 5 — OPINION AND ORDER.



“As long as a district court has jurisdiction over the case, then it possesses the inherent
procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to
be sufficient.’” City of Los Angeles, Harbor Div. y. Santa Monica Baykeeper, 254 F.3d 882, 885
(9th Cir. 2001) (quoting Melancon v. Texaco, Inc., 659 ¥.2d 551, 553 (Sth Cir. 1981)). The
Ninth Circuit’s decision demonstrates that this Court’s denial of summary judgment on
plaintiff's state law discrimination claims was based, in part, on an erroneous determination.
Therefore, the Court finds sufficient cause for this Court to reconsider its denial of defendants’
motion for summary judgment on plaintiff's state law discrimination claims.

I. Summary Judgment

Summary judgement is appropriate if “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 issue of material fact. Jd.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine
issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Jd. at 324. “Summary judgment is inappropriate if
reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict
in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th
Cir, 2008).

DISCUSSION

There is a close identity between discrimination claims brought under the Equal
Protection Clause of the Fourteenth Amendment and those brought under Oregon’s public
accommodation discrimination statute, Or. Rev. Stat. § 659A.403. Both require proof of

intentional discrimination. To prevail on an equal protection claim, a plaintiff “must first prove

Page 4 —- OPINION AND ORDER



the right was clearly established after finding a violation at the first step (emphasis added and
internal quotation marks omitted)).

Although the Ninth Circuit’s review was limited to the question of qualified immunity
and only plaintiffs equal protection claims were at issue on appeal, the Ninth Circuit considered
whether plaintiff's evidence was sufficient to establish that either Callin or Cooper intentionally
discriminated against her and concluded that it was not. On remand, that ruling is binding on
this Court. See United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (“when matters are
decided by an appellate court, its rulings . . . bind the lower court” and, “fu]pon remand, an issue
decided by an appellate court may not be reconsidered”). And the ruling is equally fatal to
plaintiffs state law discrimination claims under Or. Rey, Stat. § 659A.403 as it was to plaintiff's
federal law discrimination claims under the Equal Protection Clause.

Applying that ruling to defendants’ motion for summary judgment on plaintiff's state law
discrimination claims, the Court now concludes that summary judgment is appropriate. Because
plaintiff cannot establish that Callin or Cooper intentionally discriminated against her, plaintiff
has failed to establish that either individual defendant treated her in an “unequal” manner
because of her race, national origin, or religion pursuant to Or. Rev. Stat. § 659A.403. Plaintiffs’
state law discrimination claims against PPS, which were based on Callin and Cooper’s allegedly
discriminatory acts, fail for the same reason.

CONCLUSION

For the reasons set forth above, defendants’ Motion for Order Dismissing Plaintiff's
Public-Accommodation Claim (doc. 95) is GRANTED. Upon reconsideration, the Court
GRANTS defendants’ renewed motion for summary judgment as to plaintiffs state law

discrimination claims and DISMISSES those claims. Consistent with the Ninth Circuit’s

Page 6 - OPINION AND ORDER.



IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MARGARITA VEJO, Case No. 3:14-cv-01656-AA.
OPINION & ORDER
Plaintiff,

VS.

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.

AIKEN, District Judge:

Plaintiff Margarita Vejo asserted federal and state law discrimination claims, among
other claims, against defendants Portland Public Schools (“PPS”), Petra Callin (“Callin”), and
Roberta Cooper (“Cooper”) (collectively “defendants”).' In September 2016, this Court denied

in part defendants’ Motions for Summary Judgement (doc. 47) on the discrimination claims,

' Lewis & Clark College was also a defendant in this case, but was dismissed from this
action in September 2016. In any event, plaintiff's claims against the college are not at issue in
this motion.

Page 1 - OPINION AND ORDER



Mandate (doc. 92), plaintiff's equal protection claims against Callin and Cooper are
DISMISSED on the basis of qualified immunity. Final judgment shall be entered accordingly.
IT IS SO ORDERED.
Dated this MA, of November 2018.
(ee Oba

Ann Aiken
United States District Judge

Page 7 — OPINION AND ORDER



ruling that plaintiff had presented sufficient evidence to establish a genuine issue of material fact
about whether defendants had intentionally discriminated against her and that individual
defendants Callin and Cooper were not entitled to qualified immunity. Now, defendants ask that,
in light of the Ninth Circuit’s recent decision reversing this Court’s qualified immunity
determination, this Court reconsider the denial of summary judgment on plaintiffs’ state law
discrimination claim and dismiss that claim against all three defendants. (doc. 95) For the
reasons stated below, the motion for reconsideration is GRANTED. Upon reconsideration,
defendants’ renewed motion for summary judgment is GRANTED.
BACKGROUND

The factual background of this case is well known to the parties and will not be
reproduced here. On September 8, 2016, this Court issued an Opinion and Order granting in part
and denying in part defendants’ motions for summary judgment. Vejo v. Portland Pub, Sch., 204
F. Supp. 3d 1149 (D. Or. 2016). As relevant here, the Court granted defendants’ motion with
respect to all of plaintiff's claims except (1) plaintiffs federal law discrimination claims against
Callin and Cooper in their individual capacities under the Equal Protection Clause of the
Fourteenth Amendment and (2) plaintiff’s state law discrimination claims against all three
defendants pursuant to Or. Rev. Stat. § 659.403, which prohibits discrimination on account of
race, religion, or national origin in places of public accommodation. Jd. at 1180. With respect
to those claims, the Court determined that plaintiff had presented sufficient evidence to establish
a genuine issue of fact about federal and state law violations and that Callin and Cooper were not
entitled to qualified immunity on the federal claims. See id. at 1174 (equal protection claims);
id. at 1174 n. 17 (qualified immunity); id. at 1175 (state law discrimination claims). The Court

observed that, to establish a violation of either the Equal Protection Clause or Or. Rev. Stat. §

Page 2— OPINION AND ORDER



659A.403, plaintiff had to present evidence that defendants had terminated plaintiff's internship
because of her race, religion, or national origin. /d. at 1172. Relying on the same evidence for
both the federal and state law discrimination claims, the Court determined that plaintiff had met
her burden to avoid summary judgment based on (1) evidence that defendants terminated
plaintiffs internship without warning; (2) evidence that plaintiff had not had any problematic
interaction with a student; (3) statements that Cooper had made to plaintiff; and (4) plaintiffs
testimony that defendants were aware of her race, national origin, and religion. Jd. at 1173.

Defendants filed a direct appeal of the Court’s qualified immunity determination and, on
June 6, 2018 the Ninth Circuit reversed and remanded. Vejo v. Portland Pub. Sch., 737 F. App’x
309 (9th Cir. 2018). In its memorandum opinion, the Ninth Circuit determined that plaintiff had
failed to present evidence that Callin had intentionally discriminated against her and that
plaintiff's evidence regarding Cooper’s motivations was insufficient to establish that Cooper that
intentionally discriminated against her. Jd. at 311-12. Accordingly, the Ninth Circuit concluded
that both Callin and Cooper were entitled to qualified immunity with respect to plaintiff's federal
Jaw discrimination claims. Jd.

In response to the Ninth Circuit’s decision, defendants filed a Motion for Order
Dismissing Plaintiffs Public-Accommodation Claim (doc. 95).

STANDARDS OF REVIEW

In their motion, defendants ask the Court to revisit its denial of summary judgment on

plaintiff's state law discrimination claims in light of the Ninth Circuit’s ruling on plaintiff's

related federal claims.

I Reconsideration of Interlocutory Orders

Page 3 - OPINION AND ORDER