Margarita Vejo v. Portland Public Schools, a public entity;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARITA VEJO,
Plaintiff-Appellant,
v.
PORTLAND PUBLIC SCHOOLS, a public
entity; et al.,
Defendants-Appellees,
and
LEWIS & CLARK COLLEGE, an Oregon
public benefit corporation; DOES, 1 through
50, inclusive,
Defendants.
No. 18-36094
D.C. No. 3:14-cv-01656-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted October 18, 2019**
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: McKEOWN and PAEZ, Circuit Judges, and BASHANT,*** District
Judge.
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 §
*** The Honorable Cynthia A. Bashant, United States District Judge for
the Southern District of California, sitting by designation.

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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.
AFFIRMED.

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