UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1506
FOUGERE HOLCOMBE,
Plaintiff - Appellant,
v.
US AIRWAYS, INCORPORATED,
Defendant – Appellee.
------------------------
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:07-cv-00571-CMH-BRP)
Argued: January 26, 2010 Decided: March 5, 2010
Before TRAXLER, Chief Judge, and SHEDD and DAVIS, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
ARGUED: Vladimir Matsiborchuk, New York, New York, for
Appellant. Douglas Michael Foley, MCGUIREWOODS, LLP, Norfolk,
Virginia, for Appellee. ON BRIEF: Sarah Beckett Boehm,
MCGUIREWOODS, LLP, Richmond, Virginia, for Appellee. David
Neigus, Associate General Counsel, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, Upper Marlboro, Maryland;
Robert A. Bush, Ira L. Gottlieb, BUSH, GOTTLIEB, SINGER, LOPEZ,
KOHANSKI, ADELSTEIN & DICKINSON, Glendale, California, for
Amicus Supporting Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Fougere Holcombe (“Holcombe”) brought suit against US
Airways, Inc. (“US Airways”) in the United States District Court
for the Eastern District of New York, alleging Americans with
Disabilities Act (“ADA”) violations, including failure to
accommodate. US Airways, in the meanwhile, filed for Chapter 11
bankruptcy reorganization in the United States Bankruptcy Court
for the Eastern District of Virginia. The bankruptcy court
confirmed US Airways’ plan of reorganization. Thereafter, US
Airways filed a second bankruptcy petition and only then did
Holcombe file a claim based on her allegations of
discrimination. The bankruptcy court granted summary judgment to
US Airways, finding that Holcombe’s claim was barred as the
actions giving rise to her claim occurred prior to the adoption
of US Airways’ confirmation plan in the first bankruptcy. The
district court affirmed the order of the bankruptcy court.
Holcombe now appeals. We affirm in part and reverse in part.
I.
A.
Holcombe began working for US Airways in 1979 as a part-
time passenger service agent at LaGuardia Airport. She was
awarded full-time status in 1987. In 1992, she obtained a
promotion to a fleet service agent position. She became a member
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of the International Association of Airways Machinists and
Airspace Workers (“IAMAW”) in 1996.
In 1995, following a diagnosis of Crohn’s Disease, an
ailment that prevented her from working at night, standing for
long periods of time or performing strenuous lifting, Holcombe
requested accommodation. US Airways provided two options to
Holcombe, and she chose the option of holding an open-time
position in the tower. With the open-time option, Holcombe was
able to use her seniority to obtain day shifts in a bidding
system. By 2001, Holcombe had become a station manager.
In 2000 and 2001, Holcombe underwent several surgeries,
taking two extended medical leaves. In the meanwhile, the
LaGuardia unit changed its bidding system, allowing an open bid
for all tower positions. As a result, employees could no longer
use their seniority to obtain day shifts.
In January 2002, Holcombe met with Loretta Bove, the
station manager at LaGuardia. Bove informed Holcombe that
Holcombe could no longer exclusively work the open-time position
with day shifts. During this meeting, Holcombe proposed several
alternatives, but Bove rejected all of them because they would
violate the seniority provisions to which US Airways was bound
by its collective bargaining agreement (“the CBA”) with the
union. Thereafter, the human resources department at LaGuardia
sent Holcombe a letter indicating that (1) her request for
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daytime shifts was denied and (2) she could return to work on
the evening shifts as allowed by the seniority provisions; or
(3) she could take a leave of absence if she was unable to
return to work. After working the day shift for two weeks,
Holcombe was placed on night shifts. Holcombe worked the night
shift from January to November 2002.
In February and March 2002, however, Holcombe had filed two
grievances over, inter alia, the denial of her request for
accommodation. US Airways offered Holcombe a ramp service
position, which would require her to load and unload cargo on
and off airplanes. Holcombe declined this offer. In October
2002, Holcombe filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) asserting ADA
violations for failing to provide reasonable accommodations.
Between November 2002 and January 2003, Holcombe held day
shifts. Following the bid cycle in January 2003, when day shifts
were no longer available to Holcombe, Holcombe did not return to
work. By letter dated January 30, 2003, Bove placed Holcombe on
a mandatory medical leave of absence. Bove explained that (1) US
Airways could not accommodate Holcombe’s request for day shifts
without violating seniority provisions and (2) there were no
vacancies within the fleet service classification that would
comply with Holcombe’s medical restrictions. Holcombe remained
on medical leave of absence from US Airways until January 1,
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2006, the date she was deemed to have resigned under the terms
of the CBA 1.
On April 10, 2003, the EEOC had issued its determination
that US Airways “engaged in employment discrimination in
violation of the [ADA] with respect to harassment and
accommodat[ion].” J.A. 29-30. In July 2003, Holcombe received
her Notice of Right to Sue from the EEOC. In September 2003,
Holcombe filed suit against US Airways in the United States
District Court for the Eastern District of New York, alleging
ADA and state law violations. The case was stayed in October
2004 after US Airways filed for reorganization in the United
States Bankruptcy Court for the Eastern District of Virginia.
B.
As mentioned above, on August 11, 2002, US Airways and
seven of its subsidiaries and affiliates each filed petitions
for relief under Chapter 11 of the Bankruptcy Code. On September
6, 2002, the bankruptcy court entered an order establishing
November 4, 2002 as the non-governmental claims bar date. The
First Amended Joint Plan of Reorganization was confirmed on
March 18, 2003 and it became effective on March 31, 2003. US
Airways served bankruptcy notices on all claimants (including
1
Under the CBA, an employee who remains on leave status in
excess of three (3) years is deemed to have resigned her
position and must be removed from the seniority roster.
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Holcombe), and advertised the confirmation plan in the Wall
Street Journal and the New York Times. On September 12, 2004, US
Airways filed a second petition for relief under Chapter 11.
It is undisputed that Holcombe received multiple notices
during the first bankruptcy case; however, she failed to file a
proof of claim in the bankruptcy court. She did file a proof of
claim in the second bankruptcy case in the amount of
$60,475,000. US Airways objected to this claim and filed a
motion for summary judgment. The bankruptcy court, having the
benefit of full briefing and a hearing, granted the motion on
the ground that Holcombe’s claim was barred by the discharge in
US Airways’ first bankruptcy case. The district court affirmed
the bankruptcy court’s determination by order dated November 16,
2007. Holcombe now appeals.
II.
The district court’s order affirming the decision of the
bankruptcy court is subject to plenary review. In re Stanley, 66
F.3d 664, 667 (4th Cir. 1995). We review the bankruptcy court’s
factual findings for clear error and questions of law de novo.
Loudoun Leasing Dev. Co. v. Ford Motor Credit Co. (In re K & K
Lakeland, Inc.), 128 F.3d 203, 206 (4th Cir. 1997).
Under the Bankruptcy Code, confirmation of a Chapter 11
plan discharges a debtor “from any debt that arose before the
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date of such confirmation.” 11 U.S.C. § 1141(d)(1)(A). Discharge
occurs regardless of whether a proof of claim was filed, the
claim was allowed, or the holder of the claim accepted the plan.
Id. A claim is “a right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, legal, equitable,
secured, or unsecured.” 11 U.S.C. § 101(5)(A).
Because US Airways’ plan was confirmed on March 18, 2003,
Holcombe’s claim was properly discharged on that date unless the
claim arose after confirmation. The question here, therefore, is
whether Holcombe’s cause of action was a “claim” within the
definition in the Bankruptcy Code on March 18, 2003. We agree
with the Bankruptcy Court and the District Court that Holcombe
had a claim by March 18, 2003 and, therefore, her claim was
properly discharged to the extent it was in existence on that
date.
To determine whether a claim has arisen, we employ the
“conduct test,” which takes an expansive view of what
constitutes a claim, because “Congress intended that the
definition of claim in the Code be as broad as possible, noting
that ‘the bill contemplates that all legal obligations of the
debtor, no matter how remote or contingent, will be able to be
dealt with in the bankruptcy. It permits the broadest possible
relief in the bankruptcy court.’” Grady v. A.H. Robins Co., 839
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F.2d 198, 200 (4th Cir. 1988) (quoting H. R. Rep. No. 595, 95th
Cong., 1st Sess. 309 (1977), S. Rep. No. 989, 95th Cong., 2d
Sess. 21-22 (1978), reprinted in 1978 U.S. CODE Cong. & Adm.
News, 5787 at 5807-8 and 6266). In Grady, we were faced with the
question of whether women who had been implanted with the
debtor’s contraceptive device and suffered injuries due to the
implant after the company’s Chapter 11 filing had a claim that
was subject to the automatic stay. Id. We held that, for a claim
to arise, there need not be an immediate right to payment when
the predicate acts occurred pre-petition. Id. at 200-203. Thus,
we ruled that the plaintiff’s claim arose pre-petition and was
subject to the stay. Id. at 202-03.
Although Grady dealt with an automatic stay, our reasoning
and holding may properly be applied to discharge injunctions.
The bankruptcy court found that all events giving rise to
Holcombe’s reasonable accommodation claim – the company’s
precluding Holcombe from working day shifts in January 2002 and
the company’s refusal to allow anyone other than a supervisor to
cover for Holcombe between November 2002 and January 2003 –
occurred prior to the confirmation of the bankruptcy plan.
Indeed, Holcombe (1) filed grievances with the US Airways Human
Resources department, (2) filed a claim with the EEOC, and (3)
was placed on mandatory medical leave before the confirmation
date. It is clear that all the important acts giving rise to
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Holcombe’s original failure-to-accommodate claim arose when she
filed her grievances with the Human Resources Department and/or
filed a claim with the EEOC. That Holcombe did not receive a
notice of right to sue from the EEOC until a month after the
confirmation date is immaterial because the notice of right to
sue, as the bankruptcy court correctly pointed out, is a
procedural requirement and does not give rise to the claim.
McSherry v. Trans World Airlines, Inc., 81 F.3d 739, 71 (8th
Cir. 1996).
Holcombe points to two circumstances that demonstrate her
claim arose after the Confirmation Date: (1) her failure to be
selected for jobs for which she applied while on medical leave
and (2) her automatic termination pursuant to the CBA after
three years on medical leave. As to the first circumstance, we
readily agree that any claim arising from allegedly
discriminatory acts by US Airways occurring after March 18, 2003
were not discharged by the Plan of confirmation. Thus, for
example, if US Airways failed to select Holcombe for jobs for
which she applied after March 18, 2003, such a claim has not
been discharged. To the extent that the district court’s
dismissal covers these alleged incidents of discrimination, the
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dismissal is reversed. 2 See O’Loghlin v. County of Orange, 229
F.3d 871 (9th Cir. 2000). As for the second circumstance, the
CBA provided that employees are deemed to have resigned after
three years on medical leave. This resignation flowed naturally
from Holcombe’s leave status and was not a result of any
affirmative conduct attributable to US Airways. In any event,
to the extent that Holcombe was terminated as a consequence of
US Airways’ failure to offer her one of the jobs for which she
applied after the confirmation of the reorganization plan, she
would be entitled to a remedy for such injury. As a practical
matter, Holcombe’s viable claims, if any, arise from her non-
selection for discrete jobs post-confirmation. Accordingly, any
remedy awarded her if she should prevail on such claim (e.g.,
back pay, front pay, restoration of seniority, placement in a
designated position, and/or compensatory damages) will take
2
Of course, in order to proceed on these claims, Holcombe
must follow the requisite administrative exhaustion procedures
for ADA cases, a matter as to which we intimate no view. Nor do
we express any view here as to whether there exists a genuine
dispute of material fact as to any such claim. What is
indisputable, however, is that the “continuing violation”
doctrine does not apply in this instance. Accordingly, the
district court was correct to reject Holcombe’s apparent theory
that all of US Airways’ pre-confirmation acts and omissions
remain cognizable. Rather, only the post-confirmation acts and
omissions, if any, may give rise to liability. See National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002); see also
Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d
1449, 1456-1457 (Fed. Cir. 1997).
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account of her termination, as the failure-to-hire theory is
inextricably intertwined with her termination..
Finally, Holcombe presents other theories upon which her
claims based on pre-confirmation acts might proceed. These
theories are: (1) Holcombe could pursue her claim under the CBA
and (2) US Airways’ conduct was intentional and deceitful and
therefore not subject to the discharge in bankruptcy. These
issues were not raised in the bankruptcy court or on appeal to
the district court. Holcombe is now precluded from raising these
issues in the instant appeal. 3
III.
Holcombe has presented her claim as a single, unitary,
“continuing violation” claim which accrued pre-confirmation and
has persisted into the post-confirmation period. We reject that
theory; accordingly, Holcombe’s failure to file a proof of claim
after receiving notice in the first US Airways bankruptcy case
3
Even if these issues were properly before this court,
Holcombe’s claim would still be barred. First, the claims being
pursued by Holcombe under the CBA are for breach of contract and
not individual statutory claims. The union is currently handling
the ongoing arbitration on Holcombe’s behalf in a different
forum. Second, the provision excluding from discharge debts
caused by willful and malicious injury apply only to individual,
and not corporate debtors. Beard v. A.H. Robins Co., 828 F.2d
1029, 1032 (4th Cir. 1987); Snug Enters. v. Sage (In re Snug
Enters.), 169 B.R. 31, 32 (Bankr. E.D. Va. 1994).
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means her claim as to any pre-confirmation actions did not
survive the discharge. On the other hand, any claims arising
from allegedly discriminatory acts and omissions occurring after
the Confirmation Date have not been discharged; any such claim
remains open for full adjudication on remand. We expressly leave
to the court below plenary examination of any such claim or
claims in the first instance. The order of the district court
is, accordingly, affirmed in part, reversed in part, and
remanded.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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