                                                                           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                              NOT FOR PUBLICATION                           MAR 15 2013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.




                                           2
      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).




                                           3
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).

                                          4
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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