Upchurch v. Multnomah Univ.

Full title: RAYMOND MAXWELL UPCHURCH, Plaintiff, v. MULTNOMAH UNIVERSITY and JAKE…

Court: United States District Court, District of Oregon

Date published: Dec 31, 2021

3:19-cv-00850-AC (D. Or. Dec. 31, 2021)

Opinion

3:19-cv-00850-AC

12-31-2021

RAYMOND MAXWELL UPCHURCH, Plaintiff, v. MULTNOMAH UNIVERSITY and JAKE COBURN, an individual, Defendants.

JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

FINDINGS AND RECOMMENDATION

JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

Introduction

Raymond Maxwell Upchurch (“Upchurch”) filed this lawsuit against his former college, defendant Multnomah University (“Multnomah”), alleging claims for race and disability discrimination. Multnomah has moved for summary judgment against all of Upchurch's claims. The court finds Upchurch has failed to present evidence he was subjected to racially discriminatory conduct or a racially hostile environment of which Multnomah was aware and failed to prevent. 1

Furthermore, there is no evidence Multnomah, or any of its employees, discriminated against Upchurch solely because of a disability. Accordingly, Multnomah's motion for summary judgment should be granted.

Preliminary Procedural Matters

The evidence presented in support of, or in opposition to, a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. Fed.R.Civ.P. 56. To satisfy the requirement of authentication, as a condition precedent to admissibility, the proponent must produce “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). In the context of a summary judgment motion, documents authenticated through personal knowledge must be “attached to a [declaration] that meets the requirements of [Fed. R. Civ. P.] 56[(c)] and the [declarant] must be a person through whom the Exhibits could be admitted into evidence.” Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). Evidence that is not properly authenticated will not be considered by the court when reviewing a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002).

I. Rickles Declaration dated January 19, 2021 (“Rickles Declaration”)

Attached as Exhibit 1 to the Rickles Declaration is a picture of a whiteboard covered with handwritten comments. (Rickles Decl. dated January 19, 2021, ECF No. 58 (“First Rickles Decl.”), Ex. 1.) The Rickles Declaration does not refer to Exhibit 1 in any way. Rickles fails to identify Exhibit 1 or establish any personal knowledge of this exhibit. Consequently, Rickles fails to provide any grounds for authentication in any manner permitted by Federal Rule of Evidence 901(b) or 902, either of which would satisfy the requirements of Rule 56(c). See Orr, 285 F.3d at 2 774. However, Upchurch quoted some of the language found on the whiteboard depicted in Exhibit 1 in allegations found in the Fourth Amended Complaint filed May 16, 2021 (“Complaint”), described the picture of the whiteboard during his deposition, and did not object to the admission of the unauthenticated exhibit. (Fourth Am. Compl., ECF No. 69, (“Compl”) ¶ 16; Upchurch Dep.¹ 52:11-14, 53:11-54:22.) Consequently, the court will consider the language on Exhibit 1 to the extent is consistent with Upchurch's allegations and description.

1 Excerpts from the Upchurch deposition taken on August 17, 2020, are attached as Exhibit 19 to the Rickles declaration dated January 19, 2021 (ECF No. 58-2), Exhibit 26 to the Rickles declaration dated March 5, 2021 (ECF No. 66-1), and Exhibit A to the Johnson declaration dated February 23, 2021 (ECF No. 64-2).

II. Bergquist Declaration dated January 19, 2021 (“Bergquist Declaration”)

In her declaration, Bergquist represents “Exhibits 2 through 6, 7, and 9 through 18 are all true copies of business records and other documents maintained in [Multnomah's] files and records related to [Upchurch] and his claims.” (Bergquist Decl. dated January 19, 2021, ECF No. 56 (“Bergquist Decl.”), ¶ 12.)² The exact source of some of these exhibits, specifically Exhibit 2 (six pages apparently describing Multnomah's “Drug and Alcohol Abuse Policy” and “Community Standards”), Exhibit 4 (two pages apparently describing Multnomah's policies on reporting misconduct and drug and alcohol abuse), and Exhibit 10 (two pages apparently describing Multnomah's campus housing policies), are not discernable from the Bergquist declaration or the exhibits themselves. 3

2 The Bergquist Declaration references various exhibits, specifically Exhibits 2-7, 9-18, and 20-25, some of which are described as “attached” to the Bergquist Declaration. However, the exhibits referenced by Bergquist are instead attached as Exhibits 2-7, 9-18, and 20-25 to the Rickles Declaration, not the Bergquist Declaration.

A comparison of Exhibit 2 to Exhibit 7, which consists of excerpts from Multnomah's 2017-2018 Student Handbook (“2017 Handbook”), particularly the page numbers and document production identification, reveals the exhibits derive from the same document. Accordingly, the court will consider Exhibit 2 as additional excerpts from the 2017 Handbook.

Similarly, a comparison of Exhibit 4 and Exhibit 10 to Exhibit 21, which consists of excerpts from Multnomah's 2018-2019 Undergraduate Student Handbook (“2018 Handbook”), establishes the two pages of Exhibit 4 and the second page of Exhibit 10 are duplicates of pages found in Exhibit 21. The pagination on both pages of Exhibit 10 is consistent with that of Exhibit 21, making clear the first page of Exhibit 10 also is an excerpt from the 2018 Handbook. The court will consider the excerpts offered as Exhibit 4 and Exhibit 10.

Finally, Exhibit 6 is two pages of typewritten notes dated December 7, 2018, through January 7, 2019, which appear to a summary of communications with and about Upchurch regarding the reports of misconduct and Multnomah's response. The notes' author is not identified except by a reference to Student Success. (First Rickles Decl. Ex. 6, at 2.) (“Max came to Student Success and found me first thing in my morning.”). The court finds Exhibit 6 is not properly authenticated, is inadmissible, and will not be considered. At least some of the information contained in Exhibit 6 has been presented in other admissible forms, however, and will be considered in that context.

Background

Prior to the 2016-2017 academic year, Curt J. Bickley, Multnomah's basketball coach (“Bickley”), travelled to Sacramento, California, to watch Upchurch play in a high school playoff 4 game, and he subsequently offered Upchurch a scholarship to play basketball for Multnomah.³ (Upchurch Dep. 33:17-24, 34:12-18.) Upchurch accepted the scholarship, applied for admission to Multnomah in January 2016 for the 2016-2017 academic year, and was accepted. (First Rickles Decl. Ex. 20.) By signing the application, Upchurch certified:

3 Upchurch did not believe Bickley was racist, prejudiced, or disrespectful of African-Americans at this time. (Upchurch Dep. 34:8-1, 19-24.)

“I agree with the mission, goals, and core values of Multnomah University. I agree to abide by the guidelines, principles, and regulations published in the Multnomah catalog and student handbook. I understand that Multnomah seeks to be an alcohol-free, tobacco-free, drug-free, and sexually pure campus and I agree to live according to the Human Sexuality and Purity Understandings.”

(First Rickles Decl. Ex. 20, at 2.)

Prior to arriving at Multnomah, Upchurch knew it was a “religion-based place of higher learning, ” but he did not realize how conservative it was until after he had been on campus a week or two. (Upchurch Dep. 81:17-82:8.) Multnomah students are made aware of Multnomah's “expectations at several times during the enrollment and matriculation process, ” the student handbook is provided to Multnomah students and is available online, and “[a]ll undergraduate students are required to sign a Community Covenant affirming that they have read and agree to abided by the Student Handbook policies and procedures.” (First Rickles Decl. Ex. 5, at 1.) Upchurch received and signed for a student handbook prior to attending Multnomah. (Upchurch Dep. 20:20-23.)

The 2017 Handbook⁴ set forth Multnomah's “Drug and Alcohol Abuse Policy” which provides, in pertinent part: 5

4 Neither party offered a copy of, or excerpts from, the 2016-2017 Student Handbook.

Multnomah fully complies with the Drug-Free Schools and Communities Act Amendments. This Act and our policies seek to prevent the use of illegal drugs and the abuse of alcohol and other recreational substances which may impair functioning (such as marijuana) by students and employees. Although the use of marijuana is legal in the state of Oregon, Multnomah University complies with federal law as well as our institutional standards that prohibit the use of marijuana on or off campus while enrolled as a student at Multnomah University.

* * *

The unlawful manufacture, distribution, dispensation, possession, use of or being under the influence of or impaired by an illegal or legal substance is prohibited in and on Multnomah University owned or controlled property or while on University business. No. employee or student will be allowed in or on University property or to conduct University business while under the influence of or impaired by illegal drugs, alcohol, marijuana or other non-prescription impairing substances.

Violation of these policies by a student will be reason for mandatory testing[;] evaluation and/or treatment at the student's expense; or for judicial action up to and including campus housing eviction and/or dismissal from the University. The University will support all local, state, and federal laws relating to illegal drug[s] and alcohol abuse. Penalties for drug violations in Oregon can result in substantial fines and/or time in prison.

(First Rickles Decl. Ex. 2, at 1-2.) The 2017 Handbook also cautioned “[a]ll behavior promoting inappropriate sexual desires and actions outside of a faithful heterosexual marriage should be avoided.” (First Rickles Decl. Ex. 2, at 5.)

With respect to the student conduct judicial process utilized when Multnomah standards are violated, the 2017 Handbook advised students are entitled to receive written notice of the offense; to appear at a hearing; present a defense; to access relevant records; to seek support from a Multnomah faculty or staff member not a party to the process; to receive a written letter stating “the type of incident or behavior for which he or she is being held accountable for, and to the judicial status designation (if indicated), and to a list of all sanctions;” and they may appeal any findings and sanctions. (First Rickles Decl. Ex. 2, at 5, Ex. 7, at 2-4, 13.) The 2017 Handbook 6 identified four sanction levels - alert, probation, suspension, and dismissal - and possible sanctions included behavior/psychological assessment, counseling, mentoring, reflection paper, loss of student leadership positions, and written warnings. (First Rickles Decl. Ex. 7, at 5-8.) A first violation of the alcohol policy generally resulted in “alert” sanctions including a written warning, parent notification by the student, community service, research project, presentation, and participation in an online educational program. (First Rickles Decl. Ex. 7, at 7.)

Upchurch played on Multnomah's varsity basketball team during the 2016-2017 season without any issues or complaints. (Upchurch Dep. 34:25-35:4, 36:13-17.) In summer 2017, while Upchurch and two other black basketball players watched television in Bickley's office, Upchurch overheard Bickley say “players are like slaves.” (Upchurch Dep. 37:16-38:20.) At that time, eleven of the fifteen Multnomah basketball team players were white. (Upchurch Dep. 55:5-10.)

Upchurch unofficially reported Bickley's slave statement to Multnomah faculty members Christy Martin, Multnomah's Dean of Students (“Martin”), Jessica Taylor, Multnomah's Vice President of Diversity and Inclusive Development (“Taylor”), and Julie Frorenza, a Student Success Coordinator for Multnomah (“Frorenza”), who encouraged Upchurch to make a formal complaint. (Upchurch Dep. 38:13-25, 39:18-20.) Upchurch told the three faculty members, however, that he did not want them to “make anything out if it” because he was concerned about retaliation. (Upchurch Dep. 39:6-14.)

Upchurch again played for Multnomah's varsity basketball team at the start of the 2017-2018 season. (Upchurch Dep. 36:13-17.) On January 13, 2018, the Multnomah basketball team travelled to the College of Idaho for a game. (Upchurch Dep. 45:20-24.) Prior to the women's basketball game, which was played before the men's game, Upchurch remained seated for at least 7 a portion of the playing of the National Anthem (“Anthem”). (Upchurch Dep. 46:6-25.) Shortly thereafter, a College of Idaho janitor approached Upchurch and said “[i]f you don't like our country, you can get the heck out.” (Upchurch Dep. 47:4-10.)

At his deposition, Upchurch explained the Anthem was playing as he was entering the gym after using the restroom and he was merely trying to not be a distraction while he returned to his seat. (Upchurch Dep. 46:10-22.) He stated: “It wasn't like I was just sitting there, the [A]nthem played, and I'm, like, I'm not standing. That's - that's not what happened.”⁵ (Upchurch Dep. 46:22-25.) Upchurch did stand when they played the Anthem before the men's game. (Upchurch Dep. 47:11-15.)

5 This deposition testimony contradicts the allegations in the Complaint: “Before tip-off, Plaintiff decided to sit during the National Anthem in solidarity with other athletes across the country who were silently protesting the Anthem to bring attention to the innocent Black lives taken by law enforcement.” (Compl. ¶ 14.)

The College of Idaho soundly beat Multnomah's men's team, which loss Upchurch attributed to the team's pregame “deflation” due to the Anthem incident. (Upchurch Dep. 47:16-23.) Upchurch admitted Bickley had a right to be unhappy with the performance of a team that essentially “threw in the towel.” (Upchurch Dep. 51:9-16.)

On the afternoon of January 16, 2018, Bickley informed Upchurch he had decided to redshirt Upchurch for the remainder of the season because he “was not getting the return on his investment, ” and because he thought Upchurch might “need a year to decide what it is that you want to do.” (Upchurch Dep. 55:11-20, 56:16-25.) During this same meeting, Bickley asked Upchurch why he would not stand for the Anthem and “berated” him for wanting to be an advocate for “black folks, ” suggesting he “needed to read more black authors first . . . or educate [him]self 8 because [he] didn't know . . . everything.” (Upchurch Dep. 55:11-56:9.) Bickley told Upchurch he was “spoiled, ” “acting soft, ” and had “broke[n] his trust.” (Upchurch Dep. 56:13-15, 58:9-18.) Later that night in the locker room before the Multnomah and Warner Pacific basketball game, Bickley posted the game plan in the upper portion of a whiteboard and wrote various terms, including “soft, ” “spoiled, ” “ungrateful, ” “broken trust, ” “good at bringing drama, ” and “creates work for others” on the lower portion of the whiteboard. (First Rickles Decl. Ex. 1.) Bickley made no reference to any of the fifteen players on the Multnomah basketball team by name or race (at that time eleven of the players were white and four were black), and he did not discuss the words on the lower portion with the team. (Upchurch Dep. 54:23-55:10.) Upchurch believed the words referred specifically to him because of Bickley's comments to him earlier in the day. (Upchurch Dep. 56:16-25.)⁶

6 The lower portion of the whiteboard also noted some team members played in the College of Idaho game but failed to score any points. (Upchurch Dep. 60:16-18.) Upchurch testified he made two out of five shots at that game, three of the players that did not score at the game were white, and the “star” of the team did not make any of his shots. (Upchurch Dep. 62:6-14, 62:20-63:5.) Thus, it is clear not all of the comments on the lower portion of the whiteboard referred to Upchurch.

During the rest of his time at Multnomah, Upchurch communicated with Bickley through texts and found Bickley pleasant. (Upchurch Dep. 65:9-20.) Bickley did not send any texts that contained racially insensitive comments or material. (Upchurch Dep. 65:21-24.)

In Spring 2018, various Multnomah faculty, but primarily Martin and Frorenza, encouraged Upchurch to apply for the position of Intercultural Inclusion Chair (“Chair”) for the 2018-2019 academic year. (Upchurch Dep. 73:22-74:12.) Applicants for the Chair position were required to be committed to “God's Biblical Standards” for morality and sexual conduct; support 9 and adhere to all Multnomah policies and procedures; remain in good standing judicially and academically during their one-year term; have a consistent willingness to serve students; and demonstrate resiliency, a positive attitude, flexibility, and a collaborative spirit. (First Rickles Decl. Ex. 3.) The successful candidate for this position would be acknowledged as a top student leader, paid a $1, 500 stipend per semester, and potentially qualify for up to two semesters of service-learning credit. (Upchurch Dep. 78:25-79:12; First Rickles Decl. Ex. 3.) Multnomah also recommended the Chair limit their additional outside commitments to less than ten hours a week and required the Chair to obtain prior approval of any outside activities. (Upchurch Dep. 77:10-78:10; First Rickles Decl. Ex. 3.)

In April 2018, Multnomah selected Upchurch for the position of Chair for the 2018-2019 academic year. (Upchurch Dep. 108:7-11.) While Upchurch was aware that the Chair's obligations averaged ten hours a week; required the planning of at least four separate events including Mosaic Week; and were “emotionally tough” at times on his predecessor' he was not concerned about his ability to perform the duties of the Chair when he accepted the position. (Upchurch Dep. 76:1-15; 78:14-20; 298:7-13; First Rickles Decl. Ex. 3.) Moreover, despite the recommendation from Multnomah that the Chair limit outside commitments (which Upchurch understood was an attempt by Multnomah to protect the Chair from being “stretched too thin”), Upchurch requested, and obtained, approval to accept a job at UPS during the 2018-2019 academic year. (Upchurch Dep.77:10-78:10.)

In the summer of 2018, prior to his junior year, Upchurch attended a Multnomah leadership retreat. (Upchurch Dep. 20:24-21:6.) During the retreat, Upchurch read most of the 2018 Handbook. (Upchurch Dep. 20:24-21:6.) Consequently, before the 2018-2019 school year began, 10 Upchurch was fully aware of Multnomah's policies on premarital sex, the possession and use of alcohol and marijuana, and the steps he could take to seek mental health counseling and accommodations as described in the 2018 Handbook. (Upchurch Dep. 21:18-22:11, 173:3-13, 173:19-174:1, 174:5-22.)

The 2018 Handbook expressly provided: “All students are responsible to read the Student Handbook and follow its policies. Enrollment is your agreement that you will abide by Multnomah's policies.” (First Rickles Decl. Ex. 21, at 2.) It contained the same drug and alcohol abuse policy, and substantially similar community standards and student conduct procedures, as those set forth in the 2017 Handbook. (First Rickles Decl. Ex. 21, at 5, 7 10-16.) Additionally, the 2018 Handbook informed students of the avenues available to report violations of Multnomah standards by students or file a complaint against Multnomah. (First Rickles Decl. Ex. 21, at 6-7.)

On the issue of diversity, the 2018 Handbook advised: “Multnomah University desires to be an educational institution where all students flourish, possessing equal opportunity for success. We seek to treat all people with love, respect, dignity, and fairness. We affirm the uniqueness of each person in regard to age, race, nationality, gender, socio-economic status, ability, or evangelical diversity.” (First Rickles Decl. Ex. 21, at 4.) In support of this desired diversity, Multnomah “seeks to maintain the university environment as a Christian community that provides a place for spiritual growth, work and study free of all forms of harassment including sexual harassment, sexual intimidation and exploitation. All students, staff and faculty should be aware that the university is prepared to take action to prevent such harassment and those individuals who engage in such behavior are subject to discipline.” (First Rickles Decl. Ex. 21, at 8.) Furthermore, Multnomah “operates in compliance with all applicable federal and state non-discrimination laws 11 and regulations in conducting its programs and activities and in its employment decisions.” (First Rickles Decl. Ex. 21, at 9.)

The 2018 Handbook defined “harassment” to include “taunting, teasing, effigies, and other behavior that creates a hostile environment for another person.” (First Rickles Decl. Ex. 21, at 9.) The procedure for reporting and processing harassment complaints set forth in the 2018 Handbook provided:

Under the direction of the appropriate administrator, the University will thoroughly investigate any report of harassment and will take whatever corrective action is deemed necessary, including disciplining or discharging any individual who is found to have violated this prohibition against harassment. The reporting student or employee will be informed of the action taken. These university officials will also take action to protect the reporting student or employee, to prevent further harassment or retaliation, and as appropriate, to redress any harm done. It is the policy of the university not to tolerate harassment, and appropriate judicial action will be taken whenever such harassment is demonstrated. Any individuals engaging in such conduct contrary to the university policy may be personally liable in legal action brought against them.

A student or employee who feels that he or she has been harassed should report the situation to the Student Life Office. There is no time restriction on when reporting must take place; however, the more time that passes between an incident and the filing of a report, the more likely it is that the University will be limited in their response.

(First Rickles Decl. Ex. 21, at 9.)

The 2018 Handbook further advised Multnomah is “committed to the success of all students, including those with depression, anxiety, or other mental health conditions, ” offers “counseling services and some mental health treatment . . . at no cost to students at the Portland, Oregon campus, ” and encourages students who are facing mental health challenges to seek counseling. (Johnson Decl. dated February 23, 2021, ECF No. 64 (“Johnson Decl.”), Ex. D, at 4-5.) It stated Multnomah will: “Acknowledge but not stigmatize mental health problems;” 12

“Encourage students to seek help or treatment that they may need;” “Allow students to continue their education as normally as possible by making reasonable accommodations;” and “Refrain from discrimination against students with mental illnesses, including punitive actions toward those in crisis.” (Johnson Decl. Ex. D, at 4.) A student may request an accommodation for a mental health issue through Multnomah's disability services or counseling center. (Johnson Decl. Ex. D, at 5.) “Accommodations will be designed to enable the student to remain in school, meet academic standards, and foster heathy relationships. An accommodation will be deemed ‘reasonable' if it addresses the mental health needs of the student, maintains the safety of the campus community, does not pose a disproportionate or undue burden to the university, and does not fundamentally alter the program or course as determined by the learning objectives and systems of the university.” (Johnson Decl. Ex. D, at 5.) Additionally, “[d]isciplinary action will not be used as a pretext for discrimination.” (Johnson Decl. Ex. D, at 5.) The 2018 Handbook further explained:

When a Student Handbook policy violation overlaps with a student's state of mental health, the Student Life office will partner with the student's healthcare professionals to determine the appropriate timing of addressing the violation through the conduct process, if deemed necessary. The University will take a collaborative approach engaging the student in a disciplinary process that is developmental and holds the student's overall wellbeing as its primary goal. As such, disciplinary action for a policy violation may be avoided or sanctions altered/mitigated, when the mental health condition was the root cause of the violation. This is especially true when, as a result of treatment or other interventions, the student is likely to comply with the code of conduct in the future.

(Johnson Decl. Ex. D, at 7-8.)

As Chair, Upchurch was responsible for planning Mosaic Week, which occurred from November 5 through November 9, 2018 (Upchurch Dep. 132:10-15.) Upchurch explained the “main goal” of Mosaic Week was to “plan, promote, and execute just different events and 13 conversations regarding . . . race and diversity that we may not have normally at the school, whether that means playing different films or bringing different speakers in, just hearing different perspectives that we usually didn't at Multnomah, ” and could be considered “an effort on the part of Multnomah to raise awareness of the importance of diversity.” (Upchurch Dep. 71:3-15.)

As Chair, Upchurch worked regularly with Martin; Taylor; Shane Meyer, Multnomah's Leadership Development and Housing Coordinator (“Meyer”); and Tristan Norris, Multnomah's Associate Dean of Residence Life and Leadership (“Norris”), all individuals with whom he got along well and felt comfortable discussing racist issues or reporting racism at Multnomah. (Upchurch Dep. 83:7-18; 85:4-14.) Upchurch's faculty advisors reviewed and approved the Mosaic Week events but otherwise did not have much input in the planning. (Upchurch Dep. 87:2-9, 87:25-88:3.)⁷ Rather, Upchurch selected and worked with three student coordinators to plan Mosaic Week, primarily following the template established by Beatrix Li (“Li”), Upchurch's predecessor and the organizer of the first Mosaic Week. (Upchurch Dep. 70:18-24, 86:21-87:1, 88:10-21.) Upon the conclusion of Mosaic Week, Upchurch was pleased with the event and received generally positive reviews. (Upchurch Dep. 95:12-24, 96:14-19, 132:23-134:8.)

7 Upchurch's direct point-of-contact during Mosaic Week was Meyer, but he thought it should have been Taylor. (Upchurch Dep. 129:4-21.)

In early December 2018, Annica Davis, Upchurch's friend and fellow student (“Davis”), reported to Kim Stave, Multnomah's Dean of Students (“Stave”), that she witnessed Upchurch drinking alcohol, specifically Hennessey, in his dorm room on October 25, 2018; heard him say “he always has a bottle in his room;” thought he was “high” on three other occasions; and was concerned he had what she perceived to be a “drinking problem.” (First Rickles Decl. Ex. 25; 14 Upchurch Dep.141:5-12, 143:9-16, 145:10-16, 146:2-19, 147:13-21, 210:17-20.) In her notes of the conversation, Stave wrote “Annica went to a party, start of year, off campus, was struggling and drank to the point of probably getting drunk.” (Stave Dep.⁸ 30:10-18.) Stave did not recall who was struggling, drinking, and likely drunk or if Davis, a white female, received discipline for being drunk. (Stave Dep. 30:19-31:6, 32:7-8.)

8 Excerpts from the Stave deposition taken on August 20, 2020, are attached as Exhibit E to the Johnson Declaration dated February 23, 2021 (ECF No. 64-2).

As a result of Davis's report, Norris met with Upchurch on December 6, 2018, to discuss the drinking and marijuana use accusations. (First Rickles Decl. Ex. 5.) Upchurch admitted to eating a brownie earlier in the semester that he did not know contained marijuana, denied any other marijuana or alcohol intake, and stated he did not have any alcohol in his dorm room. (First Rickles Decl. Ex. 5, at 1.) Norris mentioned Upchurch seemed a bit depressed and asked if he was interested in seeing a counselor. (Upchurch Dep. 155:16-25.) Upchurch admitted the semester had been difficult for him and expressed interest in working with a counselor. (Upchurch Dep. 164:9-12; First Rickles Decl. Ex. 5, at 1.)

Upchurch consented to a search of his dorm room. (First Rickles Decl. Ex. 5, at 2.) During the search, Norris found two empty bottles of Mike's Hard Lemonade, an empty bottle of Smirnoff vodka, and an unopened can of Four Loko in the television stand. (Upchurch Dep. 154:25-155:4; First Rickles Decl. Ex. 5, at 2.) Upchurch denied knowing the items were in his room, represented he had two guests staying in his room recently, and indicated he believed one of them left the items in Upchurch's room without his knowledge.⁹ (First Rickles Decl. Ex. 5, at 2.) Upchurch did not 15 want to identify the people to whom the alcohol belonged because he was afraid of retaliation. (Wilson Dep. 71:14-24.)

9 During the fall term of 2018, Upchurch was assigned a single room in a dormitory on campus. (Upchurch Dep.138:22-25.) However, starting in late October 2018, Upchurch allowed Kyle Brown (“Brown”) to share his room while Brown looked for other housing, which was in violation of Multnomah's student housing rules. (Upchurch Dep.138:25-139:4, 139:23-25, 140:6-10.) Upchurch left his room unlocked to allow Brown access to the room and Brown stayed with Upchurch on and off through at least November 2018. (Upchurch Dep.140:1-5, 19-25.)

Norris confiscated the items and advised Upchurch he would follow-up with him later. (First Rickles Decl. Ex. 5, at 2.) Upchurch then made his first appointment with Michael Wilson, a Multnomah counselor (“Wilson”). (Upchurch Dep. 155:25-156:1)

In a December 10, 2018 treatment plan, Wilson noted Upchurch “is mandated for therapy due to violation of the student code of conduct” and is “struggling with major depressive order, likely the result of an anxious attachment style, and is turning toward unhealthy coping behaviors, such as consuming too much alcohol and marijuana.” (Johnson Decl. Ex. B, at 1-2.) At that time, Wilson had worked with three or four students who were mandated for treatment with him, only one of which was white. (Wilson Dep.¹⁰ 18:3-16, 19:1-8.)

10 Excerpts from the Wilson deposition taken on August 19, 2020, are attached as Exhibit 27 to the Rickles declaration dated March 5, 2021 (ECF No. 66-1) and Exhibit C to the Johnson declaration dated February 23, 2021 (ECF No. 64-2).

During a December 11, 2018 meeting with Norris, Upchurch again denied knowing the alcohol was in his room but admitted he had consumed alcohol during the semester as a coping mechanism. (First Rickles Decl. Ex. 5, at 2.) Upchurch stated Hennessey was his “go-to” liquor at the time, and he acknowledged he was aware this was a violation of the Handbook for which he and could be disciplined. (Upchurch Dep.143:17-23, 146:17-23.) Upchurch also reported he was addressing this issue in counseling and was doing “significant work” understanding and battling 16 his depression. (First Rickles Decl. Ex. 5, at 2.) Norris informed Upchurch he would be issuing a letter of finding and possibly sanctions in the coming weeks. (Upchurch Dep. 154:25-155:4.)

On December 13, 2021, Wilson reiterated his opinion that Upchurch suffered from “major depressive disorder leading to difficulties academically and socially.” (Johnson Decl. Ex. B, at 4-5.) Shortly thereafter, Wilson and Upchurch first discussed whether Upchurch should withdraw from Multnomah. (Upchurch Dep. 327:15-21.)

In a “Letter of Finding” issued on December 18, 2018 (“Letter”), ¹¹ Norris found Upchurch “responsible for the following university policy violation, as referenced on page 56 of the 2018-2019 Student Handbook: Alcohol/Drunkenness: Being in possession of and consuming alcohol as a minor.” (First Rickles Decl. Ex. 5, at 2.) Norris placed Upchurch on “Alert”¹² status, which “served as an official warning about a violation” and could result in probation or suspension if things “proceeded” or “escalated.” (Upchurch Dep. 167:12-25; First Rickles Decl. Ex. 5, at 2.) As a student leader, Upchurch was required to inform Meyer of the violation. (Upchurch Dep. 167:24-168:3; First Rickles Decl. Ex. 5, at 2.) Upchurch also needed to comply with the expectations of a student leader, attend four counseling sessions, meet with a mentor of his 17 choosing, and identify and complete a creative sanction.¹³ (Upchurch Dep. 168:18-169:7, 169:11-22, 170:20-16-24; First Rickles Decl. Ex. 5, at 2-3.) Upchurch did not claim his innocence or appeal the findings and sanctions imposed in the Letter. (Upchurch Dep. 160:8-17.)

11 The Letter is dated December 18, 2017, but the Letter's content makes clear this date is incorrect and should be December 18, 2018.

12 The 2018 Handbook provided: “The Alert judicial status is meant to serve as an official warning from the University when a student violates Multnomah's polices. If there is another violation of our policies, the student will face an escalated status, such as probation (including loss of athletic or student leadership standing) or suspension. Failure to fulfill the required sanctions given to the student under the Alert status or missing the required deadlines may result in an escalated judicial status.” (First Rickles Decl. Ex. 21, at 11.)

13 A written warning, counseling, mentoring, and a reflection paper were all listed as possible sanctions for violations of Multnomah's polices in the 2018 Handbook. (First Rickles Decl. Ex. 21, at 12-13.)

There is no evidence Norris, or any other Multnomah employee involved in the disciplinary process, was aware of Upchurch's mental health diagnosis at this time, which Wilson described as protected health information. (Wilson Dep. 43:4-9.) Upchurch also had not complained to Norris about racial discrimination or harassment prior to receiving the Letter. (Upchurch Dep. 164:13-17, 166:4-8.)

Before leaving Multnomah for the holiday break, Upchurch informed Meyer of the violation. (Upchurch Dep. 167:24-168:5.) He elected to analyze an album by J. Cole, one of Upchurch's favorite rappers, addressing issues of addiction and trauma, to fulfill the creative sanction requirement. (Upchurch Dep. 170:20-171:7.) Additionally, he selected Jake Coburn, a Multnomah employee, as his mentor. (Upchurch Dep. 169:23-170:10.) When asked why he thought Coburn would be a good mentor, Upchurch explained:

He was someone at the time that I trusted, that I got along with. He presented himself and called himself an ally, and at that time, I had no reason to believe otherwise.

And also, he was - he was cool. He was Jake. We got along very well and he was welcoming. So that was the main reason.

(Upchurch Dep. 307:15-24.) 18

Coburn indicated he did not agree with the sanctions and thought they were “ridiculous, ” and suggested Upchurch move off campus, possibly with him. (Upchurch Dep. 308:9-20.) Upchurch, however, believed the sanctions imposed on him represented an appropriate level of discipline for having alcohol in his dorm room based on the provisions of the 2018 Handbook. (Upchurch Dep. 160:8-17, 175:3-17.)

Upon his return to Multnomah from holiday break, Upchurch received an email dated January 4, 2019, from Meyer describing negative feedback he received about Mosaic Week, and stating that various students and faculty felt the week focused too much on “black and white issues, ” “was pretty much race baiting, ” and created “white guilt.” (Upchurch Dep., 100:2-101:1, 134:20-135:5.) Upchurch, who expected some negative feedback, thought these comments were not legitimate but rather a misrepresentation of the event, and he offered his opinion that Mosaic Week “tackled justice of all kinds.” (Upchurch Dep. 101:2-24.) Upchurch acknowledged the negative comments were directed to Mosaic Week as an event and not to him personally. (Upchurch Dep. 134:16-19.) Despite this, he became disillusioned with his role as Chair and the lack of support from Multnomah.

Upchurch believed Multnomah had an issue with diversity and chose him to the be Chair because I fit, in their head, what - what the picture needed to be. They knew by having me as a student leader, by having me become a part of student government, that they essentially get, for lack of a better word, like a pass because I am the token child.

* * *

Because Multnomah knew that in terms of diversity, they had an issue. They have said that on multiple occasions. They knew that they were at a crossroads where either they needed to tackle this issue now or things were going to get ugly.

19

I was the token child for that. I, me being a black male passionate about the subject, I was their - I was their way to say, hey, look, we are not nearly as bad as you think we are, look at our Intercultural Inclusion Chair.

The part that where they dropped the ball - well, they dropped the ball in many instances. The issue here, and especially in terms of Mosaic Week, was, one, the lack of training, and, two, the lack of any type of care or knowledge of the things that I was going through at the time or any help from any administration.

(Upchurch Dep. 103:6-104:14.)

Upchurch did not believe Multnomah asked him to serve as Chair for the purpose of seeing him fail, either as a whole or with regard to Mosaic Week. (Upchurch Dep. 80:18-21, 110:10-13, 124:9-15.) However, he did characterize the appointment as “tokenizing” and a form of race discrimination. (Upchurch Dep. 102:21-103:14, 105:11-19.) Upchurch stated: “If anyone on campus had questions about race, if I was in the room, they were going to ask me. Didn't matter if I was getting coffee or if I was sitting alone at a table, people came up to me and I was the race guy. It became overwhelming.” (Upchurch Dep. 112:13-24.) Multnomah students and faculty also approached Upchurch to discuss other areas of “human rights, ” such as his “stance on the LGBTQ community” and religion. (Upchurch Dep. 137:3-10.) He believed this was a form of race discrimination “[b]ecause although I was the Intercultural Inclusion Chair, I was just as much of a kid as anyone else on campus. I just happened to be black and passionate. That was the main thing for me.” (Upchurch Dep. 113:8-18.)

Upchurch claimed he felt pressure to solve “the race and diversity issue” at Multnomah during his term as Chair but concedes no one at Multnomah conveyed this expectation to him. (Upchurch Dep. 121:12-122:11.) He also noted various events at Mosaic Week generated discussions in which white individuals expressed concern about the possibility of revenge if blacks 20 were given power and complained about the time spent on diversity, which Upchurch considered created a hostile school environment. (Upchurch Dep. 131:1-132:9.) He acknowledged, however, a goals as Chair to provoke discussion between Multnomah students. (Upchurch Dep. 135:17-25.)

Upchurch did not express these feelings or complain about a lack of support to a Multnomah faculty member before he received the negative feedback on Mosaic Week. (Upchurch Dep. 108:16-109:1, 122:18-24.) After reviewing the negative feedback, Upchurch complained to Martin that he felt overwhelmed by the attention he was receiving from being the Chair, or the “race guy.” (Upchurch Dep. 110:14-21, 112:13-19.)

While Upchurch was home for the holidays, Brown trashed Upchurch's dorm room by slicing a cable line, throwing food around, and spreading lotion on his walls and sheets. (Upchurch Dep. 182:4-14, 184:7-18.) Upchurch elected to not report the damage to Multnomah faculty or administrators, but he became “extremely paranoid” due to the vandalization of his room and threats of physical violence from Brown, and he believed he was under surveillance and everyone was talking about him. (Upchurch Dep. 191:1-192:12, 196:5-8, 207:23-208:8.) Consequently, Upchurch had difficulty sleeping in his dorm room and decided to find another place to live for his health, safety, and well-being, and he pursued the possibility of moving in with Coburn. (Upchurch Dep. 191:15-24, 207:23-208:8.)

In a document apparently signed¹⁴ on January 7, 2019, Wilson represented Upchurch “presents with symptoms of PTSD and MDD¹⁵ as a result of experiencing racial discrimination by 21 basketball coaches and being mandated to disciplinary action by the student life department for possessing alcohol.” (Johnson Decl. Ex. B, at 3.) Wilson's stated goals were to “create a safe place on campus for the client to talk openly about the discrimination he is experiencing and the associated feelings, help client navigate moving off campus before the close of the semester, [and] help client develop emotion management skills to better manage his distress” during the recommended twice weekly counseling sessions. (Johnson Decl. Ex. B, at 3.)

14 The document identifies “Today's Date” as “3/7/19” but indicates it was signed on “1/7/19.” (Johnson Decl. Ex. B, at 3.)

15 “MDD” stands for Major Depressive Disorder, which Wilson diagnosed as moderate. (Johnson Decl. Ex. B, at 4; Wilson Dep. 26:1-4.)

About this time, Upchurch met with Martin, reported he was in a much better state than when he left for the holidays, and stated he wanted to move off campus. (Upchurch Dep. 227:25-228:22.) Martin informed Upchurch he needed approval to live off campus and should apply for an exemption to the on-campus residence rule¹⁶, citing a need to accommodate his mental health issues as justification. (Upchurch Dep. 228:23-229:2.)

16 Multnomah required that all single students twenty-years old or less live on campus. (Upchurch Dep. 226:12-16; First Rickles Decl. Ex. 12, at 1.)

On January 14, 2019, Meyer forwarded to Upchurch the form required to request off-campus housing asking Upchurch to provide “details which would most support the urgency and uniqueness of your specific situation.” (First Rickles Decl. Ex. 11.) Upchurch completed and submitted the request (“Request”) later that day offering the following reasons in support of the Request:

While keeping my current situation in mind here at Multnomah, I felt like I needed a change in scenery. After speaking with my counselor and other loved ones that I can trust, we feel like moving off campus would be beneficial for me for many reasons. First off, it would be less expensive for my father to pay for my tuition. I also don't eat the cafeteria food so, the money being used for my meal plan would be used for groceries off campus. Secondly, with my current situation here at Multnomah, being off campus away from distractions and other vices that have deterred me away from my main goal (getting a degree), we feel it is best for me to

22

move off campus with a mentor and person that will hold me accountable, Jacob Coburn.

(First Rickles Decl. Ex. 12.)

Upchurch wanted to live with Coburn despite a conversation in which Coburn asked Upchurch if he could still refer to his black Labrador as “Nigger” after Coburn moved in. (Upchurch Dep. 249:8-15.) Upchurch did not react to the comment or ask Coburn to not use that language around him, but instead “disregarded” the comment as a joke, laughed sarcastically, and walked away. (Upchurch Dep. 249:8-20, 250:11-22.)

On or about January 17, 2019, Wilson advised Meyer that Upchurch intended to seek a waiver to move off campus due to a mental health condition. (First Rickles Decl. Ex. 18.) Wilson would not provide a “specific diagnosis or reasons for the waiver” at that time, but assured Meyer “Upchurch did have a diagnosis and should be granted the waiver” when Upchurch submitted the Request. (First Rickles Decl. Ex. 18.)¹⁷

17 Wilson noted this conversation in an April 1, 2019 document. (First Rickles Decl. Ex. 18.)

Upchurch moved in with Coburn on January 17, 2019, despite not yet receiving approval of the Request. (Upchurch Dep. 235:7-20; 249:25-250:10.) After Upchurch moved in with Coburn, he realized Coburn's question about the use of the term “Nigger” to refer to his dog was “no longer just a joke and this was just a way that he spoke, ” because the “racist” comments escalated, particularly if Coburn was drunk. (Upchurch Dep. 249:8-24, 251:4-253:5.) When a student mentioned he had only been intimate with white women, Coburn stated: “[I]t's okay, stay pure. You are not supposed to touch anything else.” (Upchurch Dep. 251:16-22.) On another occasion, after someone offered Upchurch a puff off a cigar a group was sharing, Coburn said: 23 “[D]on't put your nigger lips on my cigar.” (Upchurch Dep. 252:3-6.) During a conversation about Upchurch's girlfriend spending time with him at Coburn's residence, Coburn commented; “[I]f she wants to stay around here, she got to cook and clean just like every other one.” (Upchurch Dep. 252:7-16.) Finally, Coburn repeated the comment about calling his dog “Nigger” two or three times. (Upchurch Dep. 252:22-253:5.)

Meyer denied the Request on January 24, 2019, because it was based on financial burden, food, and a desire for a change in scenery, which did not constitute the “extenuating circumstances” necessary to qualify for an exception to the housing guidelines. (First Rickles Decl. Ex. 13.) Meyer recommended Upchurch pursue the Request through Martin and cite his disability, and explained: “you will likely receive approval for this request if it is solely and strongly connected to mental health issues which are documented and provided for under the ADA accommodations offered to students.” (First Rickles Decl. Ex. 13.)

The next day, Upchurch met with Martin who, as Multnomah's American Disabilities Act (“ADA”) coordinator, managed disability accommodation requests. (Upchurch Dep. 237:23-238:7.) Upchurch confirmed his desire to live off campus with Coburn and represented he really respected and looked up to Coburn. (Upchurch Dep. 238:18-20.) He also told Martin drinking and smoking were not allowed in Coburn's house even though they had used such substances in the house since Upchurch moved in. (Upchurch Dep. 238:21-23, 239:17-23.)

Martin then forwarded the following email to Wilson:

I just finished meeting with Max. The Housing Committee will approve his request to live off campus based on his health needs. We need him to go through Disability Services though so that I can approve it as an ADA accommodation. (This is how we've handled similar requests in the past). Per the attached policy, I need documentation on diagnosis, impact, and mitigating recommendations (which is

24

your recommendation that he be permitted to move off campus). This could be a really brief letter from you with the necessary info. Can you provide that for us?

Max is turning in my ADA Application. We're he's going to ask that all contract fees are waived and that his bill is prorated to his actual move-out date. I'd recommend that you include something in your letter stating that you communicated to Max that moving off campus as soon as possible was in his best intertest so that his choice to move out before he had approval is validated. Let me know any questions or concerns before writing it.

(First Rickles Decl. Ex. 14, at 1.)

Martin also forwarded to Upchurch and Wilson the section of the 2018 Handbook addressing the interaction between disciplinary action and mental health which expressly provided “[d]isciplinary action will not be used as a pretext for discrimination.” (First Rickles Decl. Ex. 9.) Martin suggested the information might assist Upchurch as he “considers his best ways forward here at [Multnomah].” (First Rickles Decl. Ex. 9.) In response, Wilson sent the following text to Martin:

Quite frankly, and this is just between us, I don't believe anyone at [Multnomah], other than you and I and probably Jessica Taylor (I only say probably because I haven't actually spoken with her) has the best interest of Max in mind. They want to protect the institution, and are doing a lot of harm to an individual because they believe they know what's best. . . . I cannot be an effective advocate for Max because I've already tried, and no one gives a shit.”

(Johnson Decl. Ex. F, at 1-2.)

In a February 13, 2019 email addressed to Wilson with a copy to Upchurch, Martin stated: “I have confirmed with Max that he wants to just go the ADA route pursuing his housing exception. Can you get a written statement to me ASAP? (And Max, I need that form from you ASAP as well.)” (First Rickles Decl. Ex. 14, at 1.) About the same time, Upchurch reported Coburn's racist comments and behavior to Wilson. (Upchurch Dep. 254:13-18, 268:18-269:14.) Upchurch 25 decided to withdraw from Multnomah after this conversation, primarily because of Coburn's racist comments and Wilson's recommendation to “get the fuck out of here” after hearing of Coburn's behavior. (Upchurch Dep. 254:13-21, 267:7-14.)

Upchurch then met with Martin, Taylor, and a “few other folks to document everything.” (Upchurch Dep. 269:17.) Upchurch acknowledged he was aware he could anonymously report a violation of any community standard, including harassment “such as taunting, teasing, effigies, and other behavior that creates a hostile environment for another person, ” to the Student Life Department but admitted he did not report any claims of racial discrimination or harassment until mid-February 2019, when he reported Bickley's slave comment and Coburn's comments to Taylor after he decided to leave Multnomah. (Upchurch Dep. 38:13-39:5, 222:3-9, 223:6-17, 224:6-21, 225:2-23, 255:6-256:2.) Upchurch specifically requested Multnomah refrain from taking action on his complaints until after he was gone. (Upchurch Dep. 256:3-7.) Upchurch left for home the next day. (Upchurch Dep. 269:17-23.)

Despite Upchurch's withdrawal from Multnomah, Martin sent an email to Wilson on February 21, 2019, reminding him of the need for a “revised letter” for Upchurch. (First Rickles Decl. Ex. 16, at 1.) On February 28, 2019, Wilson authored the following letter:

To whom it may concern,

Max Underwood¹⁸ meets the criteria for an Unspecified Trauma and Stressor Related Disorder, as defined by the DSM-5. This diagnosis is the direct result of racism and discrimination directed at Max by the institution and members of the staff. It is my professional opinion that a move off-campus will best support Max's mental health. This letter is retroactive to 1/25/19, and summarizes and puts into writing conversations I had with Shane Meyer, Leadership Development and Housing Coordinator, and Christy Martin, Associate Dean of Student Success.

26 (First Rickles Decl. Ex. 17.)

18 It appears Wilson mistakenly referred to Upchurch as Underwood.

At his deposition, Wilson defined “racial discrimination” as “people discriminating against a person based on their race, making disparaging or racist remarks or comments toward an individual.” (Wilson Dep. 79:19-24.) He believed Multnomah's selection of Upchurch as Chair, which put him in a position of having to field questions about race-related experiences and issues, was offensive or insensitive and could be viewed as race discrimination. (Wilson Dep. 103-104:10.) Wilson later stated he based his conclusion that Upchurch was being discriminated against because of his race on the Bickley and Coburn comments. (Wilson Dep. 80:25-86:22.)

Wilson also testified he believed “disciplinary action was an inappropriate way to deal with what was going on” with Upchurch and individuals in the Student Life department, specifically Meyer and Stave, were not interested in collaborating with him on proper disciplinary actions. (Wilson Dep. 44:14-45:13.) He felt Multnomah was primarily interested in upholding the provisions and rules in the 2018 Handbook but should have considered finding an alternative way to address Upchurch's misconduct in light of the deeper issues of depression and discrimination. (Wilson Dep. 45:20-46:17.) However, Wilson was not aware the sole charge against Upchurch was based on the presence of alcohol in his dorm room, could not recall the type of disciplinary sanctions imposed on Upchurch, and did not know what “Alert” status entailed. (Wilson Dep. 60:7-22, 62:9-15, 63:4-17.) Additionally, Wilson was not familiar with Multnomah's disciplinary process or that a student could appeal a Letter of Finding and sanctions, could not explain when the disciplinary process overlapped with a student's mental health, did not know the legal definition of disability or if Upchurch's diagnosis qualified as a disability, and did not have training 27 in the legal definition for actionable racial harassment in a school or workplace. (Wilson Dep. 14:6-15, 16:24-17:1, 32:18-22, 38:19-39:4, 57:20-23, 70:9-19.)

Moreover, Wilson said he never recommended that all disciplinary sanctions be dropped, only that he be allowed to provide information and collaborate with the Student Life department. (Wilson Dep. 67:6-15, 68:8-18.) He admitted the disciplinary sanctions were reasonable:

Q Okay. The [Letter of Finding] goes on to indicate that because Mr. Upchurch was a student leader, he had to tell his adviser, Shane Meyer, by January 7, that he had committed this alcohol violation. Did he tell you that was one of his conditions?

A. I don't recall.

Q. Okay. Did he also tell you that he - his requirement in terms of mental health treatment wasn't to go there for some sort of a behav[io]ral assessment and was instead merely that he get some counseling at a minimum of four counseling sessions? Did he tell you that?

A. I don't recall.

* * *

Q. Okay. Given what you now know about his recommendations of what he had to do, do you believe that it's somehow inappropriate that someone who has violated the Multnomah University policies for the possession of alcohol in his dorm room at a time when he's not yet 21, is in any way an inappropriate recommendation as part of a disciplinary process?

A. I don't think it's inappropriate, no.

Q. Okay. The other condition that was placed on him was he was to go out and find a mentor and meet with a mentor at least eight times before the end of the school year. Was that something that you would consider to be an inappropriate recommendation as part of this first level disciplinary process for having booze in his room?

A. I don't think that's inappropriate, no.

28 (Wilson Dep. 63:4-17, 64:10-65:1.) Wilson's primary concern was that Multnomah punished Upchurch for possessing alcohol that did not belong to him; he believed Student Life should consider this circumstance and encouraged Upchurch to fight the charges. (Wilson Dep. 69:19-23, 71:14-17.)

In a letter dated March 4, 2019, Multnomah informed Coburn of its decision to terminate his employment based, at least in part, on Upchurch's complaints of racial discrimination and harassment. (First Rickles Decl. Ex. 24.) Multnomah explained:

This decision was made after feedback from students, staff, faculty, and administration confirmed there were multiple times that students were drinking in your presence and you didn't stop them. It was also confirmed that people have heard you say racially charged, inappropriate words - maybe in jokes, but we believe that you said them, and you allowed these types of things to be said in your presence and you didn't stop them. These are not the behaviors, words or actions which are in alignment with our institutional standards and values which we expect the members of the Multnomah community to uphold. As a result, we have made the decision to terminate your employment.

(First Rickles Decl. Ex. 24.)

Legal Standard

Summary judgment is appropriate where 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) (2019). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 5 8 F.3d 439, 441 (9th Cir. 1995).

The moving party has the burden of establishing the absence of a genuine issue of material fact. 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. Id. at 324. A nonmoving party cannot defeat summary 29 judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). 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). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).

However, deference to the nonmoving party has limits. A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence. Fed.R.Civ.P. 56(c) (2019). The “mere existence of a scintilla of evidence in support of the [party's] position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations marks omitted).

Discussion

I. First Claim for Relief - Race Discrimination

Upchurch contends Multnomah discriminated against him due to his race in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”), specifically 42 U.S.C. § 2000(d) (“Section 30 2000d”), based on Bickley's conduct, the tokenization and racial fatigue Upchurch suffered during Mosaic Week, and the disciplinary proceedings. Multnomah moves for summary judgment with respect to Bickley's conduct, arguing that such claims are barred by the applicable statute of limitations. Multnomah also seeks summary judgment on the merits of Upchurch's claims for racially disparate treatment.

A. Statute of Limitations

The parties agree Title VI does not contain a statute of limitations and the court must borrow an appropriate statute of limitations from state law. Multnomah argues the one-year statute of limitations found in Oregon's employment discrimination statutes controls while Upchurch asserts the two-year statute of limitations for personal injury claims governs. The court agrees with Upchurch.

The United States Supreme Court has characterized Congress's failure to establish a time limitation for a federal cause of action as “a void which is commonplace in federal statutory law.” Board of Regents v. Tomanio, 446 U.S. 478, 483 (1980). The “settled practice” to fill this void “has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261, 266-67 (1985).

There is no dispute Oregon's two-year statute of limitations for personal injury claims found in OR. REV. STAT. § 12.110(1) applies to claims under 42 U.S.C. § 1983 (“Section 1983”). Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (explaining the statute of limitations for Section 1983 claims is the state law statute of limitations for personal injury actions and the applicable Oregon statute of limitations is two years); Bailey v. Hanson, 247 Fed.Appx. 889, 889 (9th Cir. 2007). Both the Ninth Circuit and this District have treated claims under Title VI 31 similarly to Section 1983 claims by applying the state statute of limitations for personal injury claims to Title VI claims. See Taylor v. Regents of Univ. of California, 993 F.2d 710, 712 (9th Cir. 1993) (“[W]e now hold that claims brought under 42 U.S.C. § 2000(d) are governed by the same statute of limitations period applicable to claims brought under § 1983.”); Camarata v. Portland Cmty Coll., No. 3:19-cv-00738-HZ, 2019 WL 4723769, at *4 (D. Or. Sept. 26, 2019) (Titles VI and IX - which prohibit race discrimination in programs and activities receiving federal financial assistance and sex discrimination in education programs or activities that receive financial assistance - are governed by the same limitations period that applies to claims under § 1983.”).

Multnomah argues the court should reject established law and adopt the one-year state statute of limitations found in OR. REV. STAT. § 659.860(2) applicable to claims for race discrimination in educational institutions for Title VI clams. Multnomah asserts “Title VI and Section 1983 are qualitatively different and should not be subject to the same statute of limitations.” (Def. Multnomah University's Mot. for Summ. J., ECF No. 55 (“Mot.”), at 27.) The Ninth Circuit has effectively rejected this argument, instead electing to follow the clear instruction of the United States Supreme Court that ‘“[t]he federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support' the use of a single statute of limitations within each state.” Stanley v, Trustees of Cal. State Univ., 433 F.3d 1129, 1135 (9th Cir. 2006) (quoting Wilson, 471 U.S. at 275.) The Ninth Circuit found the state statute of limitations governing state law actions against a public entity did not apply to a claim under Title XI reasoning a statute of limitations that varied depending on the defendant “would be in sharp opposition to these federal interests.” Stanley, 433 F.3d 1135. Additionally, the court explained the issue was not what statute 32 of limitations the state legislature believed should apply to a specific claim, “but rather what state statute of limitations the federal claim should ‘borrow.'” Id. The Ninth Circuit reasoned: “The essential inquiry for state of limitations ‘borrowing' is the nature of the harm alleged, ” not necessarily the type of claim or the identity of the defendant. Id. Here, Upchurch alleges violations of his civil rights, which are adequately covered by the two-year statute of limitations set forth in OR. REV. STAT. § 12.110(1) for “any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter.” OR. REV. STAT. § 12.110(1).

The court finds the two-year statute of limitations for personal injury actions applies to Upchurch's claims under Title VI. Upchurch filed his lawsuit of May 31, 2019. Consequently, Bickley's conduct, which occurred in or after the summer of 2017, falls within the two-year statute of limitations. Multnomah's motion for summary judgment on Upchurch's Title VI based on Bickley's conduct should be denied.

B. Merits

Upchurch contends Multnomah engaged in racially disparate treatment when Bickley made the slave comment, wrote the discriminatory words on the whiteboard, and decided to redshirt him; various advisors failed to offer Upchurch sufficient support and protection during and after Mosaic Week; and Norris imposed disciplinary sanctions with respect to Upchurch's possession of alcohol. Multnomah seeks summary judgment arguing Upchurch fails to establish it had actual knowledge of the alleged discriminatory conduct, acted with deliberate indifference to Upchurch's claims of discrimination, or that the discrimination resulted in a racially hostile environment.

Section 2000(d) provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be 33 subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To state a claim under Section 2000d, or under Title VI in general, “plaintiffs must show that actions of the defendants had a discriminatory impact, and that defendants acted with an intent or purpose to discriminate based on plaintiffs' membership in a protected class.” Darenshurg v. Metro. Transp. Comm'n, 636 F.3d 511, 522 (9th Cir. 2011).

The Ninth Circuit uses Title VII standards to determine whether a plaintiff has presented a prima facie case of disparate-treatment discrimination in a Title VI action. Evans v. Superior Health Services, Inc., 958 F.2d 376 (9th Cir. 1992). Under Title VII, “an individual suffers ‘disparate treatment' when he or she is ‘singled out and treated less favorably than others similarly situated on account of race or any other criterion impermissible under [Title VII].'” Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988) (quoting Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 537 (9th Cir. 1982)).

To withstand summary judgment on a disparate treatment claim under Title VII, a plaintiff may demonstrate a triable issue of fact based on direct evidence establishing he was the target of intentional discrimination. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). “Direct evidence is ‘evidence which, if believed, proves the fact of discriminatory animus without inference or presumption.'” Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)). In other words, direct evidence is “evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that the attitude was more likely than not a motivating 34 factor in the employer's decision.” Enlow v. Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (emphasis in original).

Alternatively, when direct evidence of discriminatory animus is unavailable, a plaintiff may rely on circumstantial evidence to establish a prima facia case of discrimination under the three-step McDonnell Douglas burden-shifting framework. “Under McDonnell Douglas, a plaintiff alleging disparate treatment under Title VII must first establish a prima facie case of discrimination. Specifically, the plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably.” Chuang v. Univ. of California Davis, 225 F.3d 1115, 1123 (9th Cir.2000) (internal citation omitted). “The requisite degree of proof necessary to establish a prima facie case for a Title VII claim on summary judgment ‘is minimal and does not even need to rise to the level of a preponderance of the evidence.'” McNack v. Warren, Civil No. 99-1211-KL, 2000 WL 1478662, at *5 (D. Or. Sept. 29, 2000) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). “The plaintiff need only offer evidence which ‘gives rise to an inference of unlawful discrimination.'” Wallis, 26 F.3d at 889 (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985)).

Once a plaintiff has made his prima facie showing of discrimination, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection.” McDonnell Douglas, 411 U.S. at 802. If the defendant successfully gives such a reason for the adverse action, the plaintiff must then demonstrate the proffered reason is pretextual. Chuang v. Univ. of Cal., 225 F.3d 1115, 1124 (9th Cir.2000). Pretext may be established in one of two ways: “(1) indirectly by showing that defendant's proffered explanation 35 is unworthy of credence because it is internally inconsistent or otherwise not believable; or (2) directly, by showing that unlawful discrimination more likely motivated the defendant.” White v. TA Operating Corp., 2008 WL 2557983, **3-4, 2008 U.S. Dist. LEXIS 48103, *8-9 (D. Or. June 19, 2008) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998)).

While the general standards applicable to a Title VII claim apply to the analysis of a Title VI claim, the specific elements of a claim under Title VI, which must be viewed in an educational context, differ slightly. To prove a prima facie case for discrimination under Title VI, a plaintiff must establish “membership in a protected class, meeting the school's legitimate educational expectations, an adverse educational action and worse treatment than that of similarly situated students not in the protected class.” Brewer v. Bd. of Trustees of Univ. of Illinois, 479 F.3d 908, 921 (7th Cir 2007) (citations omitted). When, as here, a plaintiff alleges a disparate treatment claim that does “not involve official policy of the recipient entity, ” the plaintiff must also allege and prove the recipient entity had prior actual notice of the alleged discrimination and its response amounted to “deliberate indifference.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir 1998) (“When a district is ‘deliberately indifferent' to its students' right to a learning environment free of racial hostility and discrimination, it is liable for damages under Title VI.”) (citing Gebser, 524 U.S. at 289-90). This standard requires that an institutional “official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails to adequately respond.” Gebser, 524 U.S. at 290. 36

1. Bickley's Conduct

Bickley's characterization of “players” as “slaves” was not inherently discriminatory. At the time Bickley made the comment, eleven of the fifteen members of the Multnomah basketball team were white. Bickley referred to all “players, ” both white and black, similarly. He did not direct the comment at only the black players and, therefore, did not treat Upchurch worse because of his race.

Bickley's comments on the whiteboard were similarly directed at all the players and not just at Upchurch. While Upchurch felt the comments were direct specifically toward him, his feelings are not sufficient to establish the requisite disparate treatment. Bickley's comments were not racist in nature and some of them clearly did not apply to Upchurch at all. Moreover, there is no evidence any Multnomah official with the authority to address alleged discriminatory conduct were made aware of the comments in a timely manner.

Finally, Upchurch's belief Bickley's decision to redshirt him was based on his race apparently relies on Bickley's raising Upchurch's failure to stand for the Anthem discussed during the meeting in which he advised Upchurch of his new redshirt status. Upchurch testified his failure to stand during the Anthem was not in protest of the treatment of Blacks. Rather, he was merely trying to avoid being a distraction to others while he was returning to his seat, thereby eliminating any racial context to the Anthem incident. Even assuming Bickley “berated” Upchurch's desire to advocate for Black individuals, he did not attack the act of protesting, but rather Upchurch's lack of information on or insight into the Black culture.

Additionally, there is no evidence Bickley had, or would have, treated a white player differently under the same or similar circumstances or that Bickley decided to redshirt Upchurch 37 because of his race. Bickley cited a lack of return on his investment as justification for his decision to redshirt Upchurch, implying Upchurch was not performing up to Bickley's expectations. Upchurch failed to present evidence Bickley would not, or did not, redshirt white players to allow time for them to improve their basketball skills or decide if they wanted to continue playing basketball. Finally, as with the whiteboard comments, there is no evidence Upchurch informed any Multnomah official he believed Bickley redshirted him because of his race. Upchurch has failed to establish the elements of a Title VI claim based on Bickley's conduct.

2. Mosaic Week

Upchurch identifies no specific racially discriminatory conduct by Multnomah relating to Mosaic Week. Rather, he suggests Multnomah encouraged him to apply for and selected him as Chair to tokenize him and then failed to protect him from a resulting racially hostile environment.

To prevail on a hostile work environment in the Title VII context, a plaintiff must show the work environment was both subjectively and objectively hostile; that is, they must show they perceived their work environment to be hostile, and that a reasonable person in their position would perceive it to be so.” Dominguez-Curry v. Nev. Transp. Dep't., 424 F.3d 1027, 1034 (9th Cir. 2005). A plaintiff can achieve this by demonstrating: (1) they were “subject to verbal or physical conduct” because of race or gender; (2) “the conduct was unwelcome;” and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Kang v. Bank of Am., NA, 339 F.3d 792, 817 (9th Cir. 2002). To determine whether the workplace conditions meet the third factor, courts typically consider the frequency of the conduct, the duration of the conduct, the objective offensiveness of that conduct, whether the conduct was “physically threatening or humiliating, ” and whether it “unreasonably 38 interfered with” the plaintiff's work performance. Id.; Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001).

With respect to Title VI, the Ninth Circuit gives substantial deference to the Department of Education's interpretation of Title VI. Monteiro, 158 F.3d at 1033. “According to the Department of Education, a school district violates Title VI when (1) there is a racially hostile environment; (2) the district had notice of the problem; and (3) it failed to respond adequately to redress the racially hostile environment.” Id. (internal quotation marks omitted). When a hostile environment is created by the conduct of classmates or peers, “liability under Title VI is premised on a recipient's general duty to provide a nondiscriminatory educational environment.”

a. Racially Hostile Environment

According to the Department of Education, a “racially hostile environment” is “one in which racial harassment is severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by the recipient.” Id. (internal quotation marks omitted). In other words, “[r]acial harassment creates a hostile environment if it is sufficiently severe that it would interfere with the educational program of a reasonable person of the same age and race as the victim.” Id. The question of whether a hostile environment exists is determined with reference to the totality of the circumstances.” Id.

While multiple Multnomah staff members encouraged Upchurch to apply for the position of Chair, Upchurch voluntarily applied for the position knowing what it would entail. Specifically regarding Mosaic Week, Upchurch acknowledged the main goal of the event was to plan, promote, and execute events and conversations regarding race and raise awareness of the importance of diversity. Upchurch's voluntary application for the position of Chair, and Multnomah's selection 39 of Upchurch for the position, do not alone qualify as racially discriminatory acts nor did they create a racially hostile environment. Rather, Upchurch cites as evidence the stress and discomfort he felt when others approached him at school to discuss race-related experience and on his feeling he needed to solve the race and diversity issue at Multnomah.

Upchurch's reliance on these circumstances is unavailing. He relies on the very conduct he sought to inspire through Mosaic Week - conversations regarding race - but this is precisely the conduct he knew to expect from the event and, indeed, invited. Although Wilson, applying his own definition of racial discrimination, opined the conduct motivated by Mosaic Week, disparaging or racial remarks, was racist, there is no evidence anyone made disparaging or racist comments to Upchurch as a consequence of Mosaic Week. Additionally, Wilson later clarified he based his conclusion that Upchurch was subjected to racial discrimination primarily on comments made by Bickley and Coburn, not on the treatment of Upchurch after Mosaic Week.

Moreover, Upchurch was initially pleased with his performance as Chair and the response to Mosaic Week. He did not view Mosaic Week in a negative light until he returned to Multnomah in January 2019 and received negative feedback about the event. There is no evidence racial conversations between Upchurch and others increased either in quantity or racially insensitive language after the holiday break. Consequently, Upchurch's new reaction to the conversations clearly stemmed more on his knowledge of negative feedback than on the existence of a racially hostile environment created by conversations occurring prior to his return from the holiday break.

Finally, Upchurch acknowledged Li, his successor as Chair, was not affected by the challenges associated with Mosaic Week to the same degree and subsequently graduated from Multnomah. (Upchurch Dep. 70:18-24, 73:16-21.) There is no evidence Li, a minority student at 40 Multnomah, found conversations generated by Mosaic week to be unwanted or racially insensitive. Li remained capable of successfully participating in the educational opportunities offered by Multnomah and was able to able to graduate from Multnomah despite serving as Chair. This is further evidence that neither the selection of a student as Chair nor the communications generated by Mosaic Week resulted in a racially hostile environment.

b. Notice to Multnomah

Upchurch testified he worked regularly with Martin, Taylor, Meyer, and Norris as Chair and felt comfortable discussing race issues with all of them, but did not complain about his selection as Chair, lack of support as Chair, or racially hostile environment caused by Mosaic Week to anyone at Multnomah in 2018. Only after reviewing the negative feedback in early 2019, did Upchurch complain to Martin he felt overwhelmed by the attention he was receiving from being the Chair, or the “race guy, ” but he made no report of racial discrimination or of a racially hostile environment.

c. Adequate Response

“Once on notice of the problem, a school district has a legal duty to take reasonable steps to eliminate a racially hostile environment. When a district is deliberately indifferent to its students' right to a learning environment free of racial hostility and discrimination, it is liable for damages under Title VI. Monteiro, 158 F.3d at 1034. An educational institution is liable for its failure to act only “if the need for intervention is so obvious, or if inaction was so likely to result in discrimination, that it can be said to have been deliberately indifferent to the need.” Id. (internal quotations omitted). 41

Here, Upchurch reported to Martin in January 2019 he felt overwhelmed in the position of Chair or being known as “the race guy.” Assuming this qualified as notice of a racially hostile environment, the information Upchurch provided did not reveal an obvious and immediate need for intervention to prevent future racial hostility or discrimination. Upchurch's reports concerned conduct that occurred before he left for holiday break. There is no evidence the conduct of which Upchurch complained continued after he complained to Martin; indeed, when Upchurch reported to Martin in January 2019, he was in a much better state than when he left for the holiday break.

In the absence of an obvious need for intervention, Multnomah was not deliberately indifferent to Upchurch's generic report of being overwhelmed as Chair. Upchurch has failed to establish the elements of a Title VI claim for a racially hostile environment based on his selection as Chair and Mosaic Week.

3. Disciplinary Sanctions

Finally, Upchurch argues Multnomah discriminated against him based on his race by disciplining him for possessing alcohol on Multnomah property while underage. His argument relies on his assumption that Davis admitted to being drunk but was not disciplined, and on Wilson's testimony.

There is no clear evidence Davis admitted to drinking or that she was not disciplined if she did drink. Davis reported to Stave she saw Upchurch drinking and possibly high, heard him say he always had a bottle of alcohol in his dorm, and was concerned he had a drinking problem. Stave's notes of the conversation indicate Davis “went to a party” and an unidentified individual “was struggling and drank to the point of probably getting drunk.” However, Stave did not 42 remember who was struggling, drinking, and likely drunk, ” or if “Davis was ever disciplined for being drunk.”

The notes are ambiguous. However, even assuming Davis admitted to drinking, there is no evidence Davis was not disciplined for this conduct. Furthermore, the conduct of which Upchurch was accused, keeping alcohol in his dorm room while underage, is substantially different than drinking at an off-campus party. Finally, Upchurch testified he was unaware of any occasion in which Multnomah treated a white student who was drinking or reported with alcohol in their dorm room differently than how Multnomah treated him. (Upchurch Dep. 157:14-24.) Upchurch has failed to offer evidence he received worse treatment than a white student under similar circumstances.

Wilson's testimony he saw more black students mandated for therapy than white students does not necessarily support a conclusion black students were subject to disciplinary sanctions more often than white students. First, there is no evidence Wilson was the only counselor to which Multnomah students were referred for mandatory counseling. Multnomah may have employed other counselors who treated more white than black students. Additionally, while Wilson initially considered the disciplinary sanctions assessed against Upchurch to be discriminatory, he later admitted he knew little about Multnomah's disciplinary process, was not aware of the charge against Upchurch, and considered the disciplinary sanctions to be appropriate.¹⁹ Wilson explained he thought Upchurch should have been allowed to fight the charges and present evidence the alcohol belonged to another student, but he apparently was unaware Upchurch elected not to 43 identify the other student or pursue the available appeal process. Wilson's testimony does not establish Upchurch received worse treatment than a white student under similar circumstances. Upchurch has failed to establish the elements of a Title VI claim for a racial discrimination as a result of the disciplinary sanctions.

19 Upchurch himself believed the sanctions he received represented an appropriate level of discipline for having alcohol in his dorm room, based on the provisions of the 2018 Handbook.

II. Second Claim for Relief - Disability Discrimination

Upchurch bases his claim for disability discrimination on Multnomah's refusal to engage in an interactive process with Upchurch with respect to his discipline or provide a reasonable accommodation to Plaintiff based on his disability, such as reevaluation or cessation of his disciplinary sanctions. Multnomah argues summary judgment is appropriate because Upchurch failed to present evidence he suffered any actionable discrimination as a result of his mental health diagnosis.

Section 504 of the Rehabilitation Act (“Section 504”) provides: “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). Colleges, universities, or other postsecondary institutions are included in the definition of “programs or activities” receiving federal financial assistance and are covered under Section 504. 29 U.S.C. §794(b)(2)(a).

To establish a prima facie case of disability discrimination under Section 504, a plaintiff must provide evidence: (1) they are an individual with a disability within the meaning of Section 504; (2) they are otherwise qualified to receive a benefit offered by the defendant; (3) they were discriminated against, excluded, or denied the benefits of the program solely because of their disability; and the defendant receives federal financial assistance. T.B. v. San Diego United School Dist., 44 806 F.3d 451, 467 (9th Cir. 2015); Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1134 (9th Cir. 2001). Monetary damages are available under the Act only when a defendant engages in intentional discrimination. Id. at 1138. A plaintiff establishes 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.” Id. at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)).

Neither party disputes Multnomah receives Federal financial assistance or that Upchurch was qualified to receive benefits offered by Multnomah, and it does not argue Upchurch is not disabled for the purposes of Section 504. Under Section 504, a person is considered disabled when they have “a physical or mental impairment that substantially limits one or more major life activities of such individual; . . . a record of such impairment; or . . . [is] regard as having such an impairment.” 42 U.S.C. § 12102(1); see also 29 U.S.C. § 794(a) (citing 29 U.S.C. § 705(20)). Here, Upchurch has not presented sufficient evidence his mental impairment substantially limited a major life activity. Although Upchurch might rely on the mental effects of stress related to serving as Chair of and the responsibility for Mosaic Week, this argument is unavailing. Impairments which are limited to and arise out of a specific stressful situation do not qualify as a disability for the purposes of Section 504. See Gonzagowski v. Widnall, 115 F.3d 744, 746-47 (10th Cir. 1997). Nonetheless, the court will assume Upchurch is an individual with a disability for the purposes of Section 504 and proceed to consider the issue raised by the parties - whether Multnomah acted with deliberate indifference in imposing disciplinary sanctions against Upchurch because of, or in spite of, his mental impairments. 45

Upchurch alleges Multnomah continued the disciplinary process after Wilson diagnosed Upchurch with a major depressive order. The timing of the diagnosis and disclosure of such diagnosis to Multnomah is critical. The doctrine of respondeat superior applies to claims brought directly under Section 504. Duvall, 260 F.3d at 1141. Consequently, Multnomah is liable for the acts of its employees, and its employee's knowledge of Upchurch's disability is impliedly imputed to it. Id.

Upchurch met with Wilson for the first time in early December 2018. On December 10, 2018, and December 13, 2018, Wilson noted Upchurch was “struggling with” and “suffered from” major depressive disorder. Norris issued the Letter finding Upchurch guilty of a possessing and consuming alcohol and imposing disciplinary sanctions on December 18, 2018. There is no evidence Norris, or any other Multnomah employee involved in the disciplinary process, was aware of Upchurch's mental health diagnosis at this time, which Wilson identified as protected health information. In a document dated March 17, 2019, but apparently signed January 7, 2019, Wilson indicated Upchurch suffered from both post-traumatic stress disorder and moderate major depressive disorder. There is no evidence Wilson provided this information to any Multnomah employee at the time he signed it. By this time, Upchurch had completed three of the four imposed disciplinary sanctions, leaving only the creative writing project pending.

The evidence reveals Wilson first shared his concern about Upchurch's mental health with a Multnomah employee on January 17, 2019, when he informed Meyer that Upchurch intended to seek permission to live off campus due to an unidentified mental health condition. Upchurch immediately moved off campus and his request to do so was granted once he and Wilson provided the necessary documentation. Multnomah did not impose additional sanctions against Upchurch 46 after receiving general notice of Upchurch's mental health issues and did not require Upchurch to complete the creative writing project, the sole remaining disciplinary sanction.

In a January 25, 2019 email addressed to Martin, Wilson expressed frustration due to his ineffective attempts to advocate for Upchurch and over Multnomah's refusal to consider Upchurch's best interests. Wilson later explained he merely wanted to provide information about Upchurch and collaborate on his treatment, but that he never recommended all disciplinary sanctions be dropped. Moreover, once Wilson became aware of the charges against Upchurch and the disciplinary sanctions imposed, Wilson testified the sanctions were appropriate. Wilson did not request or recommend any additional accommodations.

There is no evidence Multnomah, or any of its employees, discriminated against Upchurch solely because of his mental health condition. To the contrary, once Multnomah was made aware of Upchurch's alleged disability in mid-January 2019, it accommodated Upchurch's request to move off campus after requesting, and eventually receiving, the requisite documents and essentially excused Upchurch of the sole remaining disciplinary sanction. Multnomah's conduct does not amount to the requisite deliberate indifference or the intentional discrimination necessary to recover the monetary damages. Multnomah is entitled to summary judgment on Upchurch's claim under Section 504.

Conclusion

Multnomah's motion (ECF No. 55) for summary judgment should be GRANTED. 47

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. 48