1 – OPINION AND ORDER 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

DARLENE HILL,

No. 3:15-cv-01148-MO 

Plaintiff, 

OPINION AND ORDER 

 v. 

GEORGE FOX UNIVERSITY, 

Defendant. 

MOSMAN, J., 

Defendant George Fox University (“George Fox”) filed a Motion for Summary Judgment 

[17], arguing that it is entitled to summary judgment claims made by Plaintiff Darlene Hill. I 

held oral argument on February 6, 2017. At the hearing, I GRANTED summary judgment in 

favor of George Fox on Ms. Hill’s claims for negligence, breach of good faith and fair dealing, 

and violation of the Americans with Disabilities Act. I also asked the parties to provide 

additional briefing on several questions related to Ms. Hill’s remaining two claims for violation 

of Section 504 of the Rehabilitation Act and breach of contract. This opinion addresses those 

remaining two claims, and for the reasons stated below, George Fox’s Motion for Summary 

Judgment [17] is GRANTED in part and DENIED in part. 
2 – OPINION AND ORDER 

BACKGROUND 

When Ms. Hill was sixteen, she was in a car accident and suffered a traumatic brain 

injury, leaving her with some cognitive impairments. Despite these impairments, Ms. Hill has 

endeavored to complete a graduate education. In September 2012, she applied to George Fox’s 

graduate program in Marriage, Couple, and Family Counseling, and she began taking courses in 

the Spring 2013 term. Before classes began, Ms. Hill claims that George Fox said it would grant 

her accommodations for her disabilities, including allowing her to record lectures, receiving 

copies of overhead and lecture notes, receiving help with notetaking, using a computer for 

exams, receiving extra time for tests, and taking tests in a quiet location. But Ms. Hill claims she 

was never actually provided any of the accommodations by any professor at George Fox. 

In April 2013, Ms. Hill inquired about transferring into George Fox’s psychology 

program. Although the timing is unclear from the record, Ms. Hill was ultimately accepted into 

the program. However, before and after entering the program, a series of events transpired that 

Ms. Hill argues show she was being forced out of the program because of her disability. She was 

required, for example, to take an ad hoc assessment of her reading, speech/fluency, and written 

expression, even though other students were not given a similar assessment. She also claims the 

program director contacted other faculty members about her residual memory issues, and asked 

their opinions about her ability to complete a graduate program and function as a professional. 

In addition, the program director asked for a Student Progress Review on Ms. Hill, which she 

asserts was not required for other students. 

After several meetings with faculty and after talking with the Dean of Learning Support 

Services, the program director met with Ms. Hill and suggested that he did not want her to invest 

time and financial resources in a program that might not work out for her. She claims he 
3 – OPINION AND ORDER 

indicated that she would not be able to complete an internship and, therefore, would not be able 

to graduate from the program. As a result, Ms. Hill left George Fox. 

LEGAL STANDARD 

Summary judgment is proper “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 initial burden for a motion for summary judgment is on the moving party to identify 

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986). Once that burden is satisfied, the burden shifts to the non-moving party to demonstrate, 

through the production of evidence listed in Fed. R. Civ. P. 56(c)(1), that there remains a 

“genuine issue for trial.” Celotex, 477 U.S. at 324. The non-moving party may not rely upon the 

pleading allegations. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995) 

(citing Fed. R. Civ. P. 56(e)). All reasonable doubts and inferences to be drawn from the facts are 

to be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., 

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

DISCUSSION 

George Fox argues it is entitled to summary judgment on Ms. Hill’s claims for violation 

of Section 504 of the Rehabilitation Act and breach of contract. For the reasons stated below, I 

DENY summary judgment on both claims, but I limit the scope of each claim. 

I. Section 504 of the Rehabilitation Act

Ms. Hill’s second claim alleges George Fox violated Section 504 of the Rehabilitation 

Act when it deliberately refused to provide her with accommodations. As a result, she claims 

she suffered emotional distress, embarrassment, humiliation, anxiety, stress, and fear. In 

addition, she suffered the loss of her graduate education. 
4 – OPINION AND ORDER 

Section 504 of the Rehabilitation Act prohibits discrimination against disabled 

individuals who participate in federally funded programs and activities. 29 U.S.C. § 794. To 

prevail on a Section 504 claim and receive compensatory damages, a plaintiff must prove: 

(1) she is disabled under the Act; 

(2) she is otherwise qualified to remain in the program with or without accommodation; 

(3) she was dismissed from the program solely because of her disability; 

(4) the program receives federal funding; and 

(5) the program intentionally discriminated against her or acted with deliberate 

indifference. 

Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999); Duvall v. Cnty. of Kitsap, 

260 F.3d 1124, 1138-39 (9th Cir. 2001) (explaining the requirement for proving intentional 

discrimination or deliberate indifference to receive compensatory damages). 

George Fox argues it is entitled to summary judgment on this claim because Ms. Hill 

cannot establish (1) she was “otherwise qualified” to participate in its graduate program, (2) she 

was dismissed solely because of her disability, or (3) George Fox intentionally discriminated 

against her or acted with deliberate indifference. At oral argument, George Fox also argued it is 

entitled to summary judgment because Ms. Hill cannot show she suffered any damages as a 

result of allegedly not receiving the approved accommodations. 

For the reasons stated below, I find that George Fox is not entitled to summary judgment 

on Ms. Hill’s claim for violation Section 504. However, Ms. Hill’s claim is limited to a violation 

of Section 504 based on George Fox’s failure to provide her with accommodations, because that 

is the legal theory alleged in her First Amended Complaint. Thus, she can pursue damages only 

based on that legal theory. 
5 – OPINION AND ORDER 

A. Whether Ms. Hill was Otherwise Qualified 

In a school context, an “otherwise qualified individual” is “an individual who, although 

disabled, ‘meets the academic and technical standards requisite to admission or participation in 

the [school’s] education program or activity.’” Zukle, 166 F.3d at 1046. at 1046 (citing 34 C.F.R. 

§ 104.3(k)(3)). A student bears the burden of proving she was “otherwise qualified” to

participate in a program. Id. at 1047. This includes the burden to produce “evidence of the 

existence of a reasonable accommodation that would enable her to meet the educational 

institution’s essential eligibility requirements.” Id. Then, the burden “shifts to the educational 

institution to produce evidence that the requested accommodation would require a fundamental 

or substantial modification of its program or standards.” Id. Separately, the school may show 

“that the requested accommodations, regardless of whether they are reasonable, would not enable 

the student to meet its academic standards.” Id. 

Ms. Hill argues that she has met her burden to show she was otherwise qualified under 

the Zukle framework. Specifically, she asserts that her admission into the program is prima facie 

evidence that she was otherwise qualified to participate. Furthermore, the grades she received in 

her classes at George Fox and her high undergraduate GPA are additional evidence to show she 

was otherwise qualified to participate as a student in the program. According to Ms. Hill, this 

evidence is sufficient to shift the burden to George Fox to show she was not otherwise qualified, 

or that her requested accommodations were too burdensome. 

On the surface, George Fox makes contradictory arguments about whether Ms. Hill was 

otherwise qualified for its school psychology program. To support the proposition that Ms. Hill 

was not otherwise qualified, George Fox states that the professors had legitimate concerns about 
6 – OPINION AND ORDER 

her ability to complete the program. At the same time, however, George Fox admits that she was 

admitted into the program and asserts that there is no evidence that she was being considered for 

dismissal. The upshot of George Fox’s position seems to be that, while Ms. Hill was succeeding 

in her initial graduate coursework—and thus, by definition, was “otherwise qualified” to be in 

the initial phase of the program—it did not believe that she could successfully complete the 

program. Specifically, it did not believe she could successfully complete the capstone 

requirement of the program, which was an internship in an actual counseling position. In George 

Fox’s view, the accommodations that allowed her to succeed in coursework would not be 

appropriate, nor helpful, in the live counseling setting.1

There is some strength to this argument. In my view, in the context of a graduate 

program, “otherwise qualified” means able to complete the program, with or without 

accommodations, not just succeed in the initial coursework. In programs that include 

experiential learning, therefore, the student must be otherwise qualified to complete that portion 

of the program as well. To hold otherwise would be to risk holding that a nurse who can pass a 

written exam but cannot see blood without fainting or administer shots to patients, is otherwise 

qualified to participate in a nursing program. I doubt that would be correct. 

But there are two problems with George Fox’s position in this case. First, admitting Ms. 

Hill to the program while aware of her disabilities and a willingness to make accommodations is 

powerful evidence—particularly at summary judgment—that George Fox thought she could 

complete the program. Surely it didn’t just decide to take her money, knowing she could not cut 

it as a counselor. 

1

 George Fox also expressed doubts about Ms. Hill’s ability to succeed, post-graduation, in a career in 

counseling. But this seems to look beyond the mark. If Ms. Hill can successfully complete the requirements of the 

graduate program, her future success in her career seems too speculative to form a basis for finding her not 

otherwise qualified. 
7 – OPINION AND ORDER 

Second, I must assume at summary judgment that George Fox failed to follow through 

with its promised accommodations. It is one thing to say that someone is not “otherwise 

qualified” when, from the outset, you do not believe she can complete the program. It is quite 

another to claim she is not otherwise qualified after you have admitted her, and after you have 

failed to accommodate her. At that point, at least at summary judgment, the concerns start to 

look more like post hoc rationalizations than ex ante humanitarian concerns. 

Ms. Hill’s admission to the psychology program and success in her classes at George Fox 

is sufficient evidence showing that she was otherwise qualified to participate in the program. 

George Fox has not provided any evidence to show Ms. Hill would not have been able to meet 

its requirements to continue as a student in the program at the time she was allegedly forced out 

of the program. For example, there is no evidence she was failing or classes or otherwise on 

academic probation. Accordingly, I find that Ms. Hill has met her burden of proving she was 

otherwise qualified to participate in the program for the purposes of summary judgment. 

B. Whether Ms. Hill was Dismissed Solely Due to Her Disability 

It is undisputed that Ms. Hill was admitted to the school psychology program and that she 

was never actually dismissed from George Fox. In fact, she admits that she withdrew from the 

program. George Fox argues that this fact is dispositive; without showing she was actually 

dismissed from the program, Ms. Hill cannot show that she was dismissed solely because of her 

disability. Conversely, Ms. Hill borrows from principles of employment law and argues that she 

was constructively discharged from George Fox because of her disability. 

In the employment context, “constructive discharge occurs when the working conditions 

deteriorate, as a result of discrimination, to the point that they become ‘sufficiently extraordinary 

and egregious to overcome the normal motivation of a competent, diligent, and reasonable 
8 – OPINION AND ORDER 

employee to remain on the job’.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 

2000) (citation omitted). In other words, constructive discharge is found where an environment 

is so intolerable and discriminatory as to justify a reasonable person’s decision to leave. Id. 

Showing a continuous pattern of discriminatory treatment may support a constructive discharge 

claim. Id. at 930-31. 

Whether conditions are sufficiently egregious to support a constructive discharge theory 

is usually a jury question. Id. at 930. However, such a claim may fail as a matter of law if a 

plaintiff fails to provide enough facts to show that a reasonable trier of fact could find that 

conditions were so intolerable that a reasonable person would leave. Id. 

I agree with Ms. Hill that the doctrine of constructive discharge may be applied in this 

case to show that she was forced to leave the psychology program. To support a theory of 

constructive discharge, Ms. Hill must show that the conditions at George Fox were so intolerable 

and discriminatory that they justified her decision to leave. 

Ms. Hill argues that George Fox forced her to leave the graduate program by treating her 

differently from other students on account of her disability. She notes: 

 She was subjected to a Student Progress Review that no other student was given;

 A professor communicated to her that she would not receive an internship, and

would thus fail the program;

 She was required to take a basic skills test because of her disability that others

were not required to take;

 She was told by a professor not to invest time and finances into the program

because it might not work for her due to her disabilities; and
9 – OPINION AND ORDER 

 Professors never actually provided her with reasonable accommodations even

though the school agreed to do so.

While George Fox disputes many of these facts, I must take them in the light most 

favorable to the non-moving party for the purposes of summary judgment. Thus, accepting these 

facts as true, I find that Ms. Hill has presented facts from which a jury could infer that the 

environment at George Fox was so intolerable that she was “constructively discharged” or 

pushed out of the psychology program on account of her disability. Accordingly, George Fox is 

not entitled to summary judgment on this issue. 

C. Intentional Discrimination 

Finally, in order to receive compensatory damages under Section 504, Ms. Hill must 

prove George Fox acted with “discriminatory intent.” Ferguson v. City of Phoenix, 157 F.3d 

668, 674 (9th Cir. 1998). Alternatively, Ms. Hill may prove George Fox acted with “deliberate 

indifference,” which requires showing George Fox (1) knew that harm to a federally protected 

right was substantially likely and (2) failed to act upon that likelihood. Duvall, 260 F.3d at 1139. 

A failure to act “must be a result of conduct that is more than negligent, and involves an element 

of deliberateness.” Id. 

George Fox argues there is no evidence that it intentionally discriminated or was 

deliberately indifferent towards Ms. Hill’s needs. Conversely, Ms. Hill argues George Fox’s 

policy of failing to provide accommodations is evidence of intentional discrimination, and at the 

very least, acting with deliberate indifference. Furthermore, Ms. Hill claims the ad-hoc 

assessment she was required to take, which was not given to other students, is evidence of 

discriminatory treatment. Finally, she argues that the counseling she received where she was 
10 – OPINION AND ORDER 

told she would not succeed in the program because of her disability is additional evidence of 

discriminatory intent. 

George Fox’s failure and, if true, refusal to provide Ms. Hill with her approved 

accommodations satisfies the intentional discrimination requirement under Section 504. A jury 

could determine from that fact alone that George Fox either intentionally discriminated against 

Ms. Hill based on her disability, or that it was deliberately indifferent to her rights as a disabled 

student. Even though Ms. Hill’s academic performance was not necessarily impacted by her 

failure to receive her approved accommodations, she has asserted compensatory damages based 

on a theory of emotional distress. See Kling Greater L.A. Council on Deafness v. Zolin, 812 F.2d 

1103, 1106-07 (9th Cir. 1987) (citation omitted) (“[P]laintiffs suing under section 504 may 

pursue the full panoply of remedies, including equitable relief and monetary damages.” (citation 

omitted)). Accordingly, George Fox is not entitled to summary judgment on this issue. 

D. Breadth of Ms. Hill’s Section 504 Claim 

At oral argument, it became apparent that there was some confusion about whether Ms. 

Hill’s Section 504 claim is based solely on a failure to accommodate theory, or whether it can be 

read more broadly. It is true that a Section 504 claim can be based on conduct that is much 

broader than just failing to provide accommodations; the claim can be based on a confluence of 

discriminatory actions. For example, a wrongful termination may serve as the underlying 

discriminatory conduct that violates Section 504. See Roberts v. Progressive Indep., Inc., 183 

F.3d 1215 (10th Cir. 1999). Thus, in theory, Ms. Hill’s claim could be based on the confluence 

of alleged discriminatory actions by George Fox all leading to her alleged “constructive 

discharge” from the program. 
11 – OPINION AND ORDER 

A Section 504 violation as a result of constructive discharge, however, is not what Ms. 

Hill alleges in her First Amended Complaint [6]. Paragraph 32 specifically states that the 

Section 504 claim is grounded in “George fox’s deliberate refusal to accommodate [Ms. Hill’s] 

known disabilities,” and that she suffered economic and noneconomic damages as a result. 

Accordingly, Ms. Hill is limited to seeking recovery for a violation of Section 504 based 

specifically on George Fox’s alleged failure to provide her with accommodations because that is 

the claim for relief she has asserted. Her damages must stem from that injury. 

II. Breach of Contract

Ms. Hill’s breach of contract claim is grounded in the assertion that George Fox breached

its admission agreements, graduate catalog, and student handbooks. Specifically, Ms. Hill 

claims George Fox did so by failing to accommodate her disabilities, maintain her privacy, and 

safeguard Ms. Hill from faculty and professors conspiring to dismiss or otherwise frustrate her, 

from obtaining her graduate degree. 

In order to succeed on a breach of contract claim, a plaintiff must show that the defendant 

failed to perform “a duty due under a contract.” Kantor v. Boise Cascade Corp., 708 P.2d 356, 

359 (Or. App. 1985) (en banc). Specifically, the plaintiff must show that (1) a contract existed 

between her and the defendant, (2) the relevant contract terms; (3) that plaintiff fully performed 

and did not breach; and (4) that the defendant breached the contract terms resulting in damage to 

the plaintiff. Matchniff v. Great Nw. Ins. Co., No. 6:15-cv-00193-AA, 2016 WL 742426,1 at *2 

(D. Or. Dec. 20, 2016). 

George Fox does not contest whether a contract actually existed between it and Ms. Hill. 

Instead, it argues that the breach of contract claim fails for several other reasons. First, George 

Fox argues that a breach of contract claim for failing to accommodate Ms. Hill must fail because 
12 – OPINION AND ORDER 

she cannot establish a substantive claim under the ADA or Section 504. Second, George Fox 

argues that there is no evidence that it breached any confidential provisions applicable to her 

disabilities in contravention of its policy that “[a]ll documentation is treated in a confidential 

manner and no part of it should be released by Disability Services without the student’s informed 

and written consent.” Third, it argues there is no contractual provision requiring George Fox to 

safeguard Ms. Hill’s education. 

In responding to George Fox’s motion, Ms. Hill extensively argued that a contract existed 

between her and George Fox. But she did not argue that there was evidence to support her 

claims that George Fox breached the contract by failing to maintain her privacy and safeguard 

her from faculty and professors conspiring to dismiss or otherwise frustrate her from obtaining 

her graduate degree. Ms. Hill superficially makes these arguments in the supplemental briefing 

that I ordered after oral argument, but this was not a question I raised. Instead, I asked the 

parties to explain whether a breach of contract claim could exist under the theory that George 

Fox violated Section 504 if I did not actually find that there was a substantive violation of 

Section 504 due to a lack of damages. I did not ask the parties to provide additional briefing on 

other theories for breach of contract. Accordingly, because Ms. Hill failed to show there was a 

dispute of material fact, or any argument to support a finding that George Fox breached its 

contract with her by failing to maintain her privacy or safeguard her education, I GRANT 

summary judgment in favor of George Fox on those theories of breach of contract. 

As to Ms. Hill’s breach of contract claim under the theory that George Fox failed to 

provide her with accommodations, I DENY summary judgment. Initially, George Fox argued 

that it was entitled to summary judgment on this theory because Ms. Hill could not win on the 

merits of a Section 504 or ADA claim. As to the ADA claim, however, this argument holds little 
13 – OPINION AND ORDER 

weight because I dismissed the ADA claim on the grounds that Ms. Hill could not establish 

standing to seek injunctive relief, not because she failed to show that George Fox violated the 

ADA. In addition, as explained above, I have denied summary judgment on Ms. Hill’s Section 

504 claim. Thus, George Fox’s argument that the breach of contract claim should fail because 

Ms. Hill has failed to establish that it violated Section 504 is erroneous. 

In its supplemental brief following oral argument, George Fox argues that Ms. Hill 

should not be able to sidestep the damages limitations of the underlying federal claims by 

repackaging them as breach of contract claims. In addition, George Fox argues that there is no 

evidence that its breach of contract resulted in damages, and thus, the claim should fail. 

Both of these arguments were raised for the first time by George Fox in its supplemental 

brief. George Fox did not provide legal authority to support its argument that Ms. Hill should 

not be able to repackage her substantive federal claims as breach of contract claims. In fact, it is 

common for an individual to bring multiple legal theories for liability based on the same 

underlying set of facts. Regarding damages, Ms. Hill alleges that she was damaged by 

unnecessarily incurring debt, the loss of other educational opportunities, the loss of future 

income, and the loss of the benefit of the bargain. Instead of arguing that some of these damages 

are not available to Ms. Hill, George Fox summarily argued that there is no evidence Ms. Hill 

was damaged at all. Ms. Hill has plausibly shown, however, that George Fox’s alleged breach of 

contract by failing to provide her with accommodations in violation of the ADA and Section 504 

resulted in her constructive discharge. Accordingly, it is plausible that she was damaged by the 

loss of her graduate education and by the tuition she had already paid. 
14 – OPINION AND ORDER 

CONCLUSION 

George Fox’s Motion for Summary Judgment [17] is GRANTED in part and DENIED in 

part. As I ruled at oral argument, the motion is GRANTED as to Ms. Hill’s negligence claim, 

her good faith and fair dealing claim, and her ADA claim. For the reasons stated in this opinion, 

George Fox’s motion is DENIED as to Ms. Hill’s claim for violation of Section 504, but that 

claim is limited to the failure to provide accommodations. In addition, George Fox’s motion is 

GRANTED in part and DENIED in part on Ms. Hill’s first claim for breach of contract. The 

breach of contract claim is similarly limited to a theory of breach based on George Fox’s alleged 

failure to provide accommodations. 

IT IS SO ORDERED. 

DATED this _______ day of April, 2017. 

______________________________

MICHAEL W. MOSMAN

Chief United States District Judge 

11th

 /s/ Michael W. Mosman