                              UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.




                                2
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

                                                  3
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

                                               4
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,

                                          5
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.



                                                6
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

                                        7
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

                                           8
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

                                            9
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




                                             10
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).



                                          11
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).



                                        12
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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