229 F.3d 871 (9th Cir. 2000), 98-56774, O'Loghlin v. County of Orange

Docket Nº:98-56774
Citation:229 F.3d 871
Party Name:CAROLE O'LOGHLIN, Plaintiff-Appellant, v. COUNTY OF ORANGE, Defendant-Appellee.
Case Date:October 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 871

229 F.3d 871 (9th Cir. 2000)

CAROLE O'LOGHLIN, Plaintiff-Appellant,

v.

COUNTY OF ORANGE, Defendant-Appellee.

No. 98-56774

United States Court of Appeals, Ninth Circuit

October 6, 2000

Argued and Submitted April 4, 2000

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DeAnna S. Dotson, Mililani, HI, for the plaintiff-appellant.

William F. Bernard, Santa Ana, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California. Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-97-00433-AHS

Before: William C. Canby, Jr., John T. Noonan, and William A. Fletcher, Circuit Judges.

W. FLETCHER, Circuit Judge:

Carole O'Loghlin appeals the dismissal of her claim against defendant Orange County under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. The district court dismissed O'Loghlin's

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complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that her claim, in its entirety, was discharged in the County's bankruptcy proceeding.

O'Loghlin alleges violations of the ADA both before and after the date of discharge. We hold that the district court's dismissal of O'Loghlin's claim was proper insofar as it pertained to the County's alleged pre-discharge violations. However, we hold that dismissal of her claim was improper as it pertained to an alleged post-discharge violation, even though the post-discharge violation was a continuation of the County's allegedly illegal pre-discharge behavior.

I

Beginning in November 1989, O'Loghlin worked for Orange County as a registered nurse in the Evaluation Treatment Service (ETS), a psychiatric emergency facility. In April 1992, a violent patient injured her right arm. A year later, another violent patient injured the same arm. O'Loghlin had surgery following each injury and has now lost substantial use of the arm because of nerve damage.

O'Loghlin alleges three separate episodes in which the County failed to accommodate the disability resulting from her injured arm. First, in June 1994, O'Loghlin's treating physician released her to return to work, but with the restriction that she not return to work at the ETS. Her supervisor told her either to disregard this restriction or to get it changed. A nurse employed by the County met with O'Loghlin the next day and changed the restriction. O'Loghlin's supervisors then demanded that she return to work at the ETS. O'Loghlin did not return to work and remained on medical leave.

Second, in February 1996, the County asked O'Loghlin to see Dr. Loretta Lee, a physician employed by the County. Dr. Lee recommended that O'Loghlin not return to work at the ETS. The County then offered O'Loghlin her old job at the ETS with the purported accommodation that "she could back away from assaultive patients." O'Loghlin again did not return to work.

Third, in October 1996, the County arranged a second appointment with Dr. Lee. Dr. Lee recommended that O'Loghlin not return to work at the ETS unless the County hired a team of people to protect her. The County then instructed O'Loghlin to return to work at the ETS without any accommodation. O'Loghlin once again did not do so.

Orange County filed for bankruptcy on December 6, 1994. The County's reorganization plan was confirmed in June 1996, discharging its pre-confirmation debts. The first alleged failure to accommodate O'Loghlin's disability took place before the bankruptcy filing. The second alleged failure took place between filing and discharge. The third alleged failure took place after discharge.

O'Loghlin first contacted the Equal Employment Opportunity Commission (EEOC) by telephone on June 23, 1994. She signed her intake questionnaire on April 10, 1995, two hundred ninety-four days after the first alleged failure to provide reasonable accommodation for her disability. Her filing was thus timely. See 29 C.F.R. § 1601.13(a)(4)(ii)(B); Casavantes v. California State Univ., 732 F.2d 1441, 1442-43 (9th Cir. 1984). The EEOC issued O'Loghlin a right-to-sue letter on May 8, 1997.

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