O'Loghlin v. County of Orange

• Decision Date: 06 October 2000
• Docket Number: No. 98-56774,98-56774
• Citation: 229 F.3d 871
• Parties: (9th Cir. 2000) CAROLE O'LOGHLIN, Plaintiff-Appellant, v. COUNTY OF ORANGE, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 871

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

CAROLE O'LOGHLIN, Plaintiff-Appellant, v. COUNTY OF ORANGE, Defendant-Appellee.

No. 98-56774

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted April 4, 2000

Filed October 6, 2000

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 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.

O'Loghlin brought this action against the County alleging failure to accommodate in violation of 42 U.S.C.S 12117; discrimination in employment in violation of 42 U.S.C. 1981; and deprivation of a property right in employment in violation of 42 U.S.C. 1983. The district court dismissed the complaint under Rule 12(b)(6) on the ground that the claims were discharged in bankruptcy, but granted O'Loghlin leave to amend.

O'Loghlin filed an amended complaint alleging the same claims and providing more details concerning the second and third alleged failures to accommodate. The County again moved for dismissal pursuant to Rule 12(b)(6). The district court dismissed the complaint with prejudice. It held that O'Loghlin's claim arose under the ADA in June 1994, prior to the bankruptcy, and was therefore discharged. The court held that the second and third denials of accommodation were the "inevitable consequence" of the first denial, rather than actionable continuing violations of the ADA, and were also discharged.¹

We review de novo dismissals for failure to state a claim under Rule 12(b)(6). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See Enesco Corp. v. Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). The district court should not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999) F.3d 756, 759 (9th Cir. 1999).

II

Because defendant Orange County is a municipality, see 11 U.S.C. 101(40), the applicable discharge provision is 11 U.S.C. 944(b). Section 944(b) provides that "the debtor is discharged from all debts as of the time when . . . the plan is confirmed . . . ." As used in both 1141(d) and 944(b),² "debt" is defined as "liability on a claim. " 11 U.S.C. 101(12). A "claim" is a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. 101(5). This "broadest possible definition of claim is designed to ensure that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." Siegel v. Federal Home Loan Mortgage Corp., 143 F.3d 525, 532 (9th Cir. 1998) (internal quotation marks omitted).

Insofar as O'Loghlin's ADA claim against the County is based on pre-discharge violations of the ADA, we agree with the district court that it is a "claim" within the definition of 101(5), even though O'Loghlin did not receive her rightto-sue letter until after the County's debts had been discharged. In so holding, we agree with the Eighth Circuit that a claim arises, for purposes of discharge in bankruptcy, at the time of the events giving rise to the claim, not at the time plaintiff is first able to file suit on the claim. See McSherry v. Trans World Airlines, Inc., 81 F.3d 739, 741 (8th Cir. 1996) ("[T]he right to sue letter is merely a jurisdictional prerequisite, and does not create a claim. Instead, . . . the claim was created . . . when McSherry was terminated.").

O'Loghlin's claim that the County violated the ADA after its debts were discharged in bankruptcy, however, stands on a different footing. The County argued to the district court and to us that because its alleged failures to accommodate O'Loghlin were part of a continuing course of conduct that took place both before and after discharge, it is not liable for its post-discharge conduct. Somewhat to our surprise, we have been unable to find any case precisely on point in this circuit or elsewhere. In this case of first impression, we hold that the County is liable for post-discharge conduct that violated the ADA.

In the absence of any controlling authority, the district court found the closest analogy in statute-of-limitation cases under Title VII. It specifically relied on Delaware State College v. Ricks, 449 U.S. 250 (1980), in which the Supreme Court held that the statute of limitations began to run in a Title VII case when a decision to deny tenure was made and communicated to a professor rather than at the time the professor's employment ended. The district court wrote,

In Ricks, the Court held that the plaintiff's discharge was the `delayed, but inevitable, consequence of the denial of [plaintiff's] tenure.' [449 U.S. ] at 257-58. Similarly, here, defendant's repeated refusals to satisfy plaintiff's persistent complaints were the `delayed, but inevitable consequence[s]' of defendant's original June 1994 decision.

We believe that reliance on Ricks is misplaced.

Ricks does not provide the closest analogy, for it involved a single act of alleged discrimination: the denial of tenure. Plaintiff in this case alleges not a single failure, but repeated failures, to accommodate. Under the continuing violation doctrine in this circuit, if a discriminatory act takes place within the limitations period and that act is "related and similar to" acts that took place outside the limitations period, all the related acts--including the earlier acts--are actionable as part of a continuing violation. Anderson v. Reno, 190 F.3d 930, 936 (9th Cir. 1999); see also Fielder v. UAL Corp., 218 F.3d 973, 987-88 (9th Cir. 2000); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108-11 (9th Cir. 1998).

An analogy to the continuing violation doctrine suggests the opposite result from that reached by the district court. A consequence of the continuing violations doctrine is that a defendant cannot insulate itself from liability by engaging in a series of related violations of Title VII and asserting that the statute of limitations has run for all violations as soon as the limitations period has run for the first violation in the series. This consequence suggests that an...