NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

REBEKAH J. BREYER, No. 20-35304

Plaintiff-Appellant, D.C. No. 3:17-cv-00036-AC

v.

MEMORANDUM*

PACIFIC UNIVERSITY, a domestic nonprofit corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon John V. Acosta, Magistrate Judge, Presiding

Argued and Submitted July 9, 2021 Portland, Oregon

Before: O'SCANNLAIN, PAEZ, and BENNETT, Circuit Judges. Partial Dissent by Judge BENNETT

Rebekah Breyer (“Breyer”) appeals the district court’s grant of summary

judgment in her action under § 504 of the Rehabilitation Act and Title III of the

Americans with Disabilities Act (“ADA”) (collectively, “the Acts”) against Pacific

University (“the University”). Breyer, who has cerebral palsy, alleged ten counts

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of disability discrimination during the admissions process for, and during her time

as a student in, the University’s doctor of clinical psychology program.

Summary judgment is appropriate when “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); Monzon v. City of Murrieta, 978 F.3d 1150, 1155–56 (9th Cir.

2020). No genuine issues of material fact preclude summary judgment on Breyer’s

various theories of discrimination. Reviewing de novo, we affirm.

1. The district court correctly applied a “meaningful access” standard to assess

Breyer’s discrimination claims and correctly reasoned that whether a student has

received meaningful access depends on viewing the program as a whole. Bird v.

Lewis & Clark Coll., 303 F.3d 1015, 1020, 1022 (9th Cir. 2002); see also 28

C.F.R. § 35.150(a).

2. The district court did not err in granting summary judgment on Breyer’s

claim that the University failed to provide her an equal opportunity in the

admissions process and doctor of psychology program once she was admitted. The

Acts permit the University to investigate further whether an applicant meets all

academic and technical requirements for admission. Se. Comm. Coll. v. Davis, 442

U.S. 397, 405 (1979). The University determined that Breyer was a strong

candidate for admission and she was admitted. After admission and before Breyer

began classes, the University sought to determine appropriate accommodations for

2 Breyer such that she would be afforded an equal opportunity to participate in her

academic program.

After Breyer began classes, the University counseled her about her intended

career path, informing Breyer that the adult psychology track in which she was

enrolled was not well-matched with her stated career interest in forensic

psychology. The University sought to inform Breyer that internships and

practicum placements might have differing requirements for certain fine motor

skills. Breyer requested meetings and sought information from the University

about upcoming course requirements and the need for accommodations to

complete certain coursework. Contrary to Breyer’s argument, the undisputed facts

do not establish that the University tried to steer Breyer away from her program or

provided her with an unequal opportunity on account of her disability. Nor do the

undisputed facts show that University officials believed that she was unable to

succeed as a student with disabilities.

The University’s refusal to provide Breyer with a paid personal assistant to

complete certain future course requirements did not threaten Breyer’s meaningful

participation in the doctor of psychology program nor render her access to it

unequal overall. See Bird, 303 F.3d at 1020, 1022. Breyer’s insistence that she

needed a paid personal assistant, and her subsequent withdrawal from the

University two days after she made the request, occurred before the University had

3 determined whether certain course requirements could be modified for the

following semester. Moreover, the record shows that the University granted

Breyer all other accommodations requested by Breyer during the semester in which

she was enrolled.

3. The district court did not err in granting summary judgment to the

University on Breyer’s retaliation claim. Retaliation claims arising under the ADA

are evaluated using the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).1 T.B. ex rel. Brenneise v. San

Diego Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015). Under that

framework, a plaintiff must first establish a prima facie claim of retaliation by

demonstrating that (1) she was engaged in protected activity; (2) she suffered an

adverse action; and (3) a causal connection exists between the protected activity

and the adverse action. Id. (quoting Emeldi v. Univ. of Or., 673 F.3d 1218, 1223

(9th Cir. 2012)); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).

An adverse action is any action “reasonably likely to deter [individuals]

from engaging in protected activity.” Pardi v. Kaiser Found. Hosp., 389 F.3d 840,

850 (9th Cir. 2004); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

1 Because the ADA and the Rehabilitation Act are interpreted consistently, retaliation claims arising under the Rehabilitation Act are analyzed under the same rubric. See Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th Cir. 2002) (O’Scannlain, J., dissenting from denial of reh’g en banc).

4 53, 68 (2006). Adverse actions include, among other things, tolerating harassment,

depriving a person of available support services, and requiring an individual to go

through unnecessary hoops. See Ray, 217 F.3d at 1241–42 (outlining cases finding

adverse actions).

The record does not show a genuine dispute of material fact as to whether

the University engaged in retaliation against Breyer. Breyer initiated several

meetings with university officials to discuss possible accommodations and course

requirements, and university officials proactively reached out to Breyer to discuss

concerns that Breyer expressed during class time. There is no evidence that the

University took any adverse action against Breyer to dissuade her from

complaining of discrimination. Nor is there any evidence that the University failed

to respond to her complaints—the University responded to each of Breyer’s

concerns as they arose and instructed Breyer on how to file a formal complaint.

See White, 548 U.S. at 57; Pardi, 389 F.3d at 850.

4. The district court declined to recognize a hostile environment theory of

disability discrimination under the Acts. Indeed, we have not held that such a

claim is cognizable. But even assuming, without deciding, that such a claim is

cognizable, it fails here. The record does not demonstrate that the University’s

actions rise to the level of severe or pervasive harassment. See Arizona ex rel.

Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016). Breyer has not

5 pointed to any evidence in the record that suggests she experienced an abusive

educational environment. See id.

5. The district court did not err in granting summary judgment on Breyer’s

discrimination claims relating to the admissions process. Breyer made several

references to her disability status throughout her application materials. The

University did not discriminate against Breyer when it asked Breyer program-

related questions about her self-disclosed functional limitations. See 34 C.F.R. §

104.42(b)(4). Inquiries about an applicant’s functional limitations are permissible

because they address whether a person is qualified for a program. See Wong v.

Regents of Univ. of Cal., 192 F.3d 807, 817 (9th Cir. 1999); 34 C.F.R. § 104.42(a);

45 C.F.R. § 84.3(1)(3).

6. The district court did not err in granting summary judgment on Breyer’s

reasonable modification and auxiliary aid claims. A university is only required to

make reasonable accommodations, Baughman v. Walt Disney World Co., 685 F.3d

1131, 1135 (9th Cir. 2012), and is not required to make fundamental or substantial

modifications to its programs for a student with disabilities, Bird, 303 F.3d at 1020

(citing Alexander v. Choate, 469 U.S. 287, 300 (1985)). See also 42 U.S.C.

§ 12182(b)(2)(A)(ii); 34 C.F.R. §§ 104.44(a), 104.44(d)(2); 28 C.F.R.

§§ 36.303(a), 36.306. Although Breyer withdrew from the university mid-way

through her first semester, after the University denied her request for a paid

6 personal assistant, the officials in charge of her academic program were still

researching which reasonable accommodations would be appropriate in light of

future course requirements. The record shows that the University granted Breyer

every accommodation that she requested to facilitate her participation in her first

semester classes.

7. The district court did not err in granting summary judgment on all of

Breyer’s claims. The University moved for summary judgment against each of

Breyer’s claims as alleged in the Second Amended Complaint. Summary

judgment is appropriate where, as here, there is no genuine dispute of material fact,

Fed. R. Civ. P. 56(a), and the moving party is entitled to judgment as a matter of

law.

AFFIRMED.

7

FILED

Breyer v. Pacific University, No. 20-35304 AUG 27 2021

MOLLY C. DWYER, CLERK

BENNETT, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS

The failure to reasonably accommodate an otherwise qualified individual’s

disability is discrimination under Section 504 of the Rehabilitation Act. Alexander

v. Choate, 469 U.S. 287, 300–01 (1985). An individual is “otherwise qualified” if

she “is able to meet all of a program’s requirements in spite of [her] handicap.” Se.

Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Title III of the ADA likewise makes

it actionable discrimination to fail to make reasonable modifications that are

necessary to accommodate an individual’s disability, unless a proposed modification

would “fundamentally alter” the service being offered. 42 U.S.C.

§ 12182(b)(2)(A)(ii).

Defendant-Appellee Pacific University (“Pacific”) was concerned that

Plaintiff-Appellant Rebekah Breyer would be unable to complete certain parts of her

cognitive assessment course unaccommodated. During one meeting, the Director of

Diversity, Dr. Susan Li, expressed that Breyer’s current accommodations “did not

appear to be sufficient to provide [her] the support that she would need in the area

of assessment.” In particular, Dr. Li was concerned that the standardized testing

component of the assessment course would “require timed administrations and

manipulation of materials,” and that “any nonstandard administration might result

in unreliable and invalid test results.” Those concerns were reiterated in a

1 subsequent meeting between Breyer and the Director of the School of Professional

Psychology, Dr. Jennifer Clark, who also explained that the cognitive assessment

course would require “manipulation of materials and using a [stopwatch] to

administer timed subtests”; that the validity of test results might be affected “if not

administered according to standardized procedures”; and that Pacific would “gather

more information about accommodations.”

Responding to those concerns, Breyer took the initiative to research and

request a possible accommodation—an assistant provided by Pacific to perform the

tasks that she would be unable to perform due to her disability. Dr. Clark granted

this request on behalf of Pacific, allowing Breyer to “complete the requirements of

the coursework with the assistance of someone who would administer the testing.”

Yet there was one important caveat: the cost of an assistant would be Breyer’s

responsibility. 1

In other words, Pacific determined that Breyer did not have to administer the

standardized tests to complete the cognitive assessment course and thus necessarily

1 The relevant portion of Dr. Clark’s email summarizing her meeting with Breyer reads in full: We discussed your request via email about the possibility of having an assistant for the test administration requirements in assessment coursework and in practicum training. I let you know that you could complete the requirements of the coursework with the assistance of someone who would administer the testing, but that the expense for this service would be your responsibility. 2 determined that doing so was not a “requirement” of the Doctor of Clinical

Psychology Program and would not “fundamentally alter” it. Those determinations

meant that under both the Rehabilitation Act and the ADA, Pacific owed Breyer a

duty to reasonably accommodate her disability. Pacific failed that duty, and thus

discriminated against her, when it refused to provide the accommodation she

requested or to suggest a reasonable alternative. See Stewart v. Happy Herman’s

Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (“[A] qualified

individual with a disability is not entitled to the accommodation of her choice, but

only to a reasonable accommodation.” (quotation marks and citation omitted)).

The majority avoids that conclusion and affirms summary judgment on

Breyer’s reasonable accommodation claim under the belief that “officials in charge

of [Breyer’s] academic program were still researching which reasonable

accommodations would be appropriate in light of future course requirements.”

Majority at 6–7. But this belief finds no support in the record. At the very least, it

is subject to a genuine factual dispute.

On the Sunday before Dr. Clark decided to allow Breyer to use an assistant at

her own expense, Dr. Clark was indeed still exploring “what accommodations would

be allowable and acceptable.” It was her “plan to address/discuss these issues on

Monday with involved faculty,” and indeed by Monday, Dr. Clark had determined

that allowing Breyer to use an assistant to administer the standardized tests was an

3 allowable and acceptable accommodation. Pacific was simply unwilling to pay for

the accommodation, or to offer to provide any of the obvious alternatives to a paid

assistant, such as allowing another student to administer the tests on Breyer’s behalf.

In short, Pacific has presented no evidence that it was “still researching what

reasonable accommodations would be appropriate” when it refused to pay for a

personal assistant—i.e., it has presented no evidence to undermine Breyer’s claim

that it outright denied her request for a reasonable accommodation. Nor has it

shown—or even argued—that providing Breyer an assistant (or any other available

accommodation) would have caused undue hardship. See Vinson v. Thomas, 288

F.3d 1145, 1154 (9th Cir. 2002) (under the Rehabilitation Act, the defendant bears

the burden of producing evidence that an accommodation is not reasonable after the

plaintiff produces evidence that an accommodation is possible); Karczewski v. DCH

Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (under Title III of the

ADA, “[i]f Plaintiff establishes a prima facie case, then Defendant must make the

requested modification unless it proves that doing so would alter the fundamental

nature of its business” (quotation marks and citation omitted)). And yet, Pacific has

defeated Breyer’s reasonable accommodation claim at summary judgment.

Thus, because I would remand the reasonable accommodation claim for trial,

I respectfully dissent from this portion of the majority disposition. 2

2 I concur in the remainder of the disposition. 4