Margarita VEJO, Plaintiff-Appellant, v. PORTLAND PUBLIC SCHOOLS, a public entity; et al., Defendants-Appellees, Lewis & Clark College, an Oregon public benefit corporation; Does, 1 through 50, inclusive, Defendants.
Decided: November 14, 2019
Before: McKEOWN and PAEZ, Circuit Judges, and BASHANT,** District Judge.
Micah D. Fargey, Attorney, Fargey Law PC, Portland, OR, Herbert George Grey, Herbert G. Grey, Attorney At Law, Beaverton, OR, for Plaintiff-Appellant Cody J. Elliott, Esquire, Attorney, Miller Nash Graham & Dunn LLP, Portland, OR, for Defendants-Appellees
This is the second appeal in this case following the panel’s remand in a Memorandum Disposition dated June 6, 2018. The parties are familiar with the procedural history and the facts, so we do not repeat them here.
Although the panel did not explicitly rule on the state law discrimination claim in the Memorandum Disposition, we did so “by necessary implication.” United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000). At the heart of both a § 1983 equal protection claim and Oregon's public-accommodation-discrimination statute, Or. Rev. Stat. § 659A.403, is the question of intentional discrimination. Compare Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003) (“To establish a § 1983 equal protection violation, the plaintiffs must show that the defendants, acting under color of state law, discriminated against them as members of an identifiable class and that the discrimination was intentional”) with Harrington v. Airbnb, Inc., 348 F. Supp. 3d 1085, 1089 (D. Or. 2018) (Oregon's public-accommodation-discrimination statute is a “discriminatory intent” statute, not a “discriminatory effect” statute, and requires a showing of intentional discrimination). When we determined Vejo's § 1983 claim failed due to the absence of intentional discrimination, we necessarily implicated the failure of the Oregon public-accommodation-discrimination claim as well. None of the exceptions to the application of the law-of-the-case doctrine apply here, nor does Vejo argue they do.
Vejo also argues that even if the law-of-the-case doctrine applies to the state law claim against Petra Callin (“Callin”) and Roberta Cooper (“Cooper”), it does not apply to the claim against Portland Public Schools (“PPS”). Blue Br. 11. As Vejo's state law claim against PPS is derivative of Callin and Cooper's conduct, it fails for the same reason.
We affirm the district court’s dismissal of the state law claim and the grant of defendants’ renewed motion for summary judgment with regard to the state law claim.
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