Soignier v. American Bd. of Plastic Surgery

• Decision Date: 19 September 1996
• Docket Number: No. 96-1255,96-1255
• Parties: 144 A.L.R. Fed. 695, 6 A.D. Cases 1328, 17 A.D.D. 764, 8 NDLR P 276 Wayne SOIGNIER, Plaintiff-Appellant, v. AMERICAN BOARD OF PLASTIC SURGERY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 547

92 F.3d 547

144 A.L.R. Fed. 695, 6 A.D. Cases 1328,

17 A.D.D. 764,

8 NDLR P 276

Wayne SOIGNIER, Plaintiff-Appellant, v. AMERICAN BOARD OF PLASTIC SURGERY, Defendant-Appellee.

No. 96-1255.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 1996.

Decided Aug. 12, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Sept. 19, 1996.

Gerardo S. Gutierrez, Chicago, IL, Charles E. Baruch (argued), Abbott & Baruch, Rowlett, TX, for Wayne Soignier.

Douglas R. Carlson (argued), Frederick L. Schwartz, Wildman, Harrold, Allen & Dixon, Chicago, IL, for American Bd. of Plastic Surgery.

Before COFFEY, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

A plastic surgeon claims certain disabilities prevented him from passing the oral portion of a board certification examination. On his fifth attempt the American Board of Plastic Surgery gave him extra time to complete the test and allowed him to use demonstrative aids. He still did not pass. The surgeon pursued an internal appeal of this failure and the denial of some of his requested accommodations, which the Board denied. He then sued the Board alleging the accommodations offered him failed to satisfy Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 ("ADA"). Because his cause of action accrued when he took the test without the accommodations he requested, and because his internal appeal did not stay the statute of limitations, the district court properly dismissed his case as barred under the applicable limitations period.

I.

Board certification is a critical mark of professional medical competence. Dr. Wayne Soignier, a plastic surgeon from Dallas, Texas, passed the written portion of his board certification exam in 1983, but did not pass the oral portion after four attempts. According to the American Board of Plastic Surgery's rules, applicants for board certification may take the oral exam only five times. If not successful they must complete an additional year of training in a plastic surgery residency before reapplying. Soignier's diligence in seeking certification is understandable: besides the professional prestige associated with board certification, many health maintenance and preferred provider organizations refuse to contract with non-board certified plastic surgeons. Over half of Soignier's potential patients are related either to an HMO or a PPO.

The next oral exam scheduled for November 1992 would be his last chance (unless he completed additional training). For that exam Soignier asked the Board to accommodate his disabilities, which he says include an attention deficit disorder, difficulty processing and expressing information due to an "auditory processing disability," and dyslexia. Soignier requested more time to take the test, use of models and paper drawings during the test, time to rephrase questions or rewrite them if necessary, and different examiners than those who had administered his past tests. The Board did not accede to all of his requests, but did give him extra time to complete each session and allowed him to explain his answers using demonstrative aids. Even with these accommodations, he did not pass the orals on this fifth try.

Soignier then pursued a voluntary internal appeal before the Board. He also sought another oral exam with additional accommodations. On May 13, 1993, the Board alerted him that "the circumstances of this examination were as accommodating as could be structured" and that he would not be given another chance to take the orals. In November 1994 the Board denied his internal appeal. It upheld the test result and found that the November 1992 examination had been conducted fairly.

On May 9, 1995, Soignier sued the Board alleging that the accommodations offered him did not satisfy 42 U.S.C. § 12189 of the ADA, which mandates that professional certification examinations be offered in a place and manner acceptable to the disabled. His complaint alleged that his failure to pass the oral exam "is not surprising, in that it is presented in a format particularly inappropriate for a physician with a learning disability." He asserted the Board's modifications at the November 1992 test "were largely illusory" and "woefully insufficient." ¹

The Board moved to dismiss Soignier's complaint as time-barred. The parties agreed that Illinois' two-year statute of limitations period for personal injury actions applied. ² Ill.Stat. ch. 735, para. 5/13-202 (1993). The district court found that Soignier discovered his claimed injury in November 1992, as evidenced by the allegations in his complaint. It reasoned that the internal appeal process was used to remedy past wrongs and to review his request for a retest, and therefore did not constitute a new wrong extending the accrual date. Because Soignier's claim accrued in November 1992, but he did not file his complaint in federal court until May 1995, the district court dismissed this suit as time-barred pursuant to Fed.R.Civ.P. 12.

We review de novo the district court's dismissal order. Jones v. General Elec. Co., 87 F.3d 209, 211 (7th Cir.1996); Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir.1995). We accept all allegations properly pleaded in the complaint and make reasonable inferences in the doctor's favor. Jones, id.; see Graehling v. Village of Lombard, Illinois, 58 F.3d 295, 297 (7th Cir.1995).

II.

Soignier argues that the district court erred when it dismissed his suit as untimely because the Board engaged in a continuous course of conduct which extended the accrual date of his claim and because the limitations period should have been tolled during the internal appeal. As backup, the surgeon contends that the statute of limitations should be equitably tolled, and that the Board is equitably estopped to assert the limitations period as an affirmative defense.

A. Choice of Statute of Limitations

The ADA, like many federal civil rights statutes, does not contain a specific statute of limitations. Thus, the most appropriate state limitations period applies. 42 U.S.C. § 1988(a); Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 1941-42, 85 L.Ed.2d 254 (1985). Wilson dictates a three-step borrowing analysis: if no federal law provides a limitations period (step 1), the common law as modified by state statute is to be applied (step 2), but only if it is not inconsistent with the Constitution and laws of the United States (step 3). Under step 2 courts are to select the statute of limitations of the state cause of action "most appropriate" or "most analogous" to the plaintiff's claim. See, e.g., Owens v. Okure, 488 U.S. 235, 239, 109 S.Ct. 573, 576, 102 L.Ed.2d 594 (1989); Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928-29, 82 L.Ed.2d 36 (1984).

The statute Soignier invokes in Title III of the ADA prohibits discrimination by a private entity offering a professional certification examination. We agree with the parties that this claim is best characterized as one for personal injury. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 661, 107 S.Ct. 2617, 2621, 96 L.Ed.2d 572 (1987) (action for discrimination is one for "fundamental injury to the individual rights of a person"); Wilson, 471 U.S. at 280, 105 S.Ct. at 1949 (claims which allege discrimination are best characterized as personal injury actions). The district court thus correctly applied Illinois' two-year statute of limitations for personal injuries as the most analogous limitations period for Soignier's ADA claim. ³

B. Application of Statute of Limitations

Although the parties agree which limitations period applies, they dispute when it began to run. The district court concluded that an ADA claim such as Soignier's under 42 U.S.C. § 12189 accrues when a covered entity refuses to offer an examination in a manner accessible to an otherwise qualified disabled American. In his complaint Soignier alleges that in November 1992 he was disabled but that the Board refused him sufficient test-taking accommodations for his disabilities. [Dist. Ct. Opinion pp. 3-5] Because the elements of an ADA claim were present when Soignier took his orals for the fifth time in November 1992, the district court reasoned that the two-year limitations period began to run then. The court concluded therefore that the complaint filed in May 1995 was untimely.

On appeal, Soignier argues that the Board engaged in a "continuous course of conduct" against him. To Soignier, the Board's unlawful conduct under the ADA only began with the fifth oral exam in November 1992, continued with the Board's refusal to retest him in May 1993, and did not end until its denial of his internal appeal and refusal to provide testing with the accommodations he requested in November 1994. He asserts that the earliest his claim could have accrued was May 13, 1993, when the Board refused to retest him, and more probably the period did not begin to run until that continuous course of conduct ended in November 1994. The dismissal order is incorrect, Soignier submits, because he filed suit within two years of either of these dates.

The law and reason support the district court's decision. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and its progeny in this circuit dictate that discovery of the original act of discrimination, not future confirmation of the injury or determination that the injury is unlawful, is when the statute of limitations begins to run. Id. at 258, 101 S.Ct. at 504. See, e.g., Kennedy v. Chemical Waste Mgmt Inc., 79 F.3d 49, 50 (7th Cir.1996) (deprivation of employee benefit was injury that set statute of limitations running in ADA action, even though injury was contingent); Thelen, 64 F.3d at 267 (injury discovered when controller informed employee he would be terminated; statute of limitations began to run on that date); Graehling, 58 F.3d at 297 (7th Cir.1995) (separation at a time established by an earlier...