Ronald Doyle v. City of Medford , 512 F. App'x 680 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RONALD DOYLE; et al., No. 11-35935
Plaintiffs - Appellants, DC No. 1:06 cv-3058 PA
and
MEMORANDUM *
ROBERT DEUEL,
Plaintiff,
v.
CITY OF MEDFORD, an Oregon
muncipal corporation and MICHAEL
DYAL, City Manager, City of Medford, in
his invididual and official capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted March 8, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ronald Doyle, Benedict Miller, and Charles Steinberg, retired employees of
the City of Medford (the “City”), appeal the district court’s denial of their motion
for summary judgment on their claim that the City’s decision to exclude retirees
from its group health insurance plan violated the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”), and the court’s grant
of summary judgment to the City. Appellants previously brought a claim of age
discrimination under Oregon law. The state court found that the City’s policy of
excluding retirees was not facially discriminatory (that is, it rejected appellants’
disparate treatment theory), but held, on a theory of disparate impact, that the
City’s policy violated state law. The federal district court gave preclusive effect to
the state court’s disparate treatment ruling, but declined to do so for the disparate
impact theory. See Doyle v. City of Medford, 2011 WL 4894077, at *2-*3 (D. Or.
2011). It held that appellants failed to show prima facie disparate impact and,
alternatively, that the City established a statutory affirmative defense because its
decision to exclude retirees was reasonably based on financial factors. Id. at *3-*4.
It further held that the claims of appellant Steinberg, who filed his first EEOC
charge more than three years after retiring, were time-barred. Id. at *5.
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We review de novo grants of summary judgment, questions regarding the
preclusive effects of prior judgments, and determinations of whether claims are
time-barred. See Johnson v. Henderson, 314 F.3d 409, 413 (9th Cir. 2002); Frank
v. United Airlines, Inc., 216 F.3d 845, 849-50 (9th Cir. 2000). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Appellants’ disparate treatment claim turns on an issue that was
necessarily decided against them in a prior state court decision and, under Oregon
preclusion law, they are barred from relitigating the issue. See Engquist v. Or.
Dep’t of Agric., 478 F.3d 985, 1007 (9th Cir. 2007), aff’d, 553 U.S. 591 (2008). A
state court has already decided that the City’s policy does not treat retirees
differently based upon the protected characteristic of age, and the district court
correctly gave preclusive effect to that prior decision. See id.; 28 U.S.C. § 1738.
2. Appellants’ disparate impact claim fails because the City’s decision to
exclude retirees falls within the statutory affirmative defense for “otherwise
prohibited” actions that are “based on reasonable factors other than age” – also
known as the RFOA defense. 29 U.S.C. § 623(f)(1); see 29 C.F.R. § 1625.7(e)(1).
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This defense assumes that a non-age factor is at work.1 See Meacham v. Knolls
Atomic Power Lab., 554 U.S. 84, 96 (2008); Smith v. City of Jackson, Miss., 544
U.S. 228, 239 (2005). Accordingly, we ask whether the City’s policy was
“reasonable,” not whether it was based on a factor “other than age.” The City met
its burden of proof by presenting evidence that its decision saved the City and its
employees significant sums of money.
3. The district court held that Steinberg’s claims were time-barred
because they accrued upon “the City’s final refusal to provide continued health
insurance, which was 60 days after the date of retirement,” and Steinberg failed to
file a charge within 300 days of accrual, as required by 29 U.S.C. § 626(d). Doyle,
2011 WL 4894077, at *5. We agree. An ADEA claim accrues “upon awareness of
the actual injury, i.e., the adverse employment action, and not when the plaintiff
suspects a legal wrong.” Lukovsky v. City & Cnty. of S.F., 535 F.3d 1044, 1049
(9th Cir. 2008). Even if the City had not engaged in the challenged policy, its
previous policy gave retirees only 60 days from the date of retirement to elect
ongoing coverage. It is undisputed that, when Steinberg retired, the City gave him
1
Thus, the RFOA defense is unavailable where an employment practice
is challenged as being age-based – that is, in disparate treatment cases. 29 C.F.R.
§ 1625.7(d).
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only one health insurance option: COBRA.2 By the end of the sixty-day window,
when Steinberg had still not been permitted to elect ongoing coverage, he
indisputably had knowledge of the facts giving rise to his claim. Although
Steinberg seeks to circumvent the time-bar by arguing that he lacked knowledge of
the pertinent Oregon law until a date that comes within the limitations period, his
ignorance of the law has no bearing on the date of his injury. See Lukovsky, 535
F.3d at 1049.
We do not reach the merits of Steinberg’s equitable tolling argument
because, were his claims not time-barred, they would fail for the same reasons as
those of appellants Doyle and Miller. Finally, we are not persuaded that
Steinberg’s right to retiree health benefits under Oregon law creates a present
violation under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 112
(2002). Whereas Morgan involved discrete acts of alleged discrimination under
federal law, Steinberg seeks to make timely his federal claim by virtue of what he
2
“COBRA” refers to the Consolidated Omnibus Budget Reconciliation
Act, 29 U.S.C. § 1161 et seq., which “requires group health care plan sponsors to
provide continuation coverage for employees who are terminated from their
employment under certain specified circumstances, including layoffs.” Alday v.
Raytheon Co., 693 F.3d 772, 780 n.5 (9th Cir. 2012) (quoting Local 217, Hotel &
Rest. Emp. Union v. MHM, Inc., 976 F.2d 805, 806-07 (2d Cir. 1992)).
5
contends is a present state law violation; he cites no authority for that novel
proposition.
AFFIRMED.
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