Petition for Writ of Certiorari — Karen H. Scott, Petitioner v. District Hospital Partners, L.P., et al.

No.

========================================

In The

SUPREME COURT OF THE UNITED STATES

____________

KAREN H. SCOTT PETITIONER

v.

DISTRICT HOSPITAL PARTNERS, L.P. & UHS OF

DELAWARE, INC. RESPONDENTS

_____________

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

________________

PETITION FOR WRIT OF CERTIORARI

APPENDIX VOL. 2 OF 2

___________

Laurence A. Elgin

Counsel of Record

601 Pennsylvania Ave. NW

Suite 900 South Building

Washington D.C. 20004

lawnet.lae@gmail.com

========================================

34

categories race, religion,and age. She did not check

the boxes for disability and retaliation. In the

narrative portion of the form, Scott described the

“particulars” of her claim, in full, as follows:

In August 2007, I was hired by George

Washington University Hospital as a Case

Management Associate .On April 1, 2010, I

was suspended for one week by Beth

Reinhart, Director, Case Management

(White). On November 29, 2010, Ms.

Reinhart terminated my employment.

I believe I have been discriminated

against (disciplined, discharged) because of

my race (Black), religion (Christian) and

age (54). I feel the Respondent has violated

Title VII of the Civil Rights Act of 1964, as

amended (Title VII) and the Age

Discrimination in Employment Act of 1967,

as amended (ADEA).

_______________

1

While the Court must take the allegations in Scott’s

complaint as true at this state of the litigation, it

bears noting that Reinhart disputes Scott’s version of

events. She contends that Scott became argumentative

and confrontational after Reinhart asked her not to prop open a

door to the work space that must remain closed for security

reasons. Pl.’s Opp. to Mot. to Dismiss Ex. 4.

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 3 of 12

Mot. to Dismiss. Ex. 1. Scott also completed an intake

questionnaire that accompanied the standard EEOC

charge form in which she again left blank boxes

indicating that her claims of discrimination were

based on disability or retaliation. She did, however,

35

respond to the questing “[w]hy do you believe these

actions were discriminatory?” by stating that there

was “‘dust’ in office that was making [her] sick” and

that she had “difficulty breathing.” Opp. to Mot. to

Dismiss Ex. 7. Scott also provided the EEOC with

notes from a doctor, titled “Disability Certificate[s],”

permitting her to stay home from work due to

shortness of breath, id. 9 & Ex. 2, as well as emails

she sent to hospital management recounting her

confrontation with Reinhart. Id. Ex. 3 & 5. EEOC

intake notes indicate that Scott alleged that Reinhart

had a practice of firing non-white employees and

replacing them with white employees, that Reinhart

“treat[ed] younger workers better than [Scott,]”

and—apparently in support of her religious

discrimination claim—that Reinhart “might be into

witchcraft or be a witch” because “black dust emits

from [her.]” Id. Ex. 8.

Scott filed an amended EEOC charge on August 26,

2011, after securing counsel, which added allegations

of a hostile work environment and removed religion

as a basis for discrimination. Mot. to Dismiss Ex. 2.

Once again, Scott (and her lawyer) left blank the

boxes on the charge form for disability disc

rimination and retaliation. The narrative portion of

the amended charge did not elaborate on the facts

underlying her initial charges based on race and age,

and did not mention disability as a basis for the new

hostile work environment charge. Over a year later,

on January 7, 2013, Scott filed a second amended

EEOC charge, alleging discrimination and retaliation

based on race and disability, as well as a hostile work

environment. Opp. to Mot. to Dismiss Ex. 6. Scott’s

counsel argued at the time that the disability claim

related back to Scott’s 2011 charges, but the EEOC

considered her disability claim untimely. The EEOC

then dismissed Scott’s allegations in all three of her

EEOC charges, explaining that it was closing

36

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 4 of 12

its file on the charges because it was “unable to

conclude that the information obtained establishe[d]

violations of the statutes.” Mot. to Dismiss Ex. 3.

On April 30, 2013, Scott filed a five-count complaint

in this Court. Count One alleges that the hospital

failed to accommodate, and ultimately fired her

because of, a disability—“shortness of breath” caused

by poor air quality in her workspace—in violation of

the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101. Count Two alleges that that she was

terminated because of her race in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e. Count Three alleges that the hospital

maintained a hostile work environment based on race,

disability, and age. Count Four alleges that the

hospital terminated Scott in retaliation for having

complained about her mistreatment by Reinhart. And

Count Five alleges wrongful termination under

District of Columbia common law. The hospital has

moved to dismiss, or alternatively, for summary

judgment, with respect to all of Scott’s claims except

Count Two for race discrimination under Title VII.

II. Standard of Review

To survive a motion to dismiss for failure to state a

claim, a complaint must contain sufficient factual

matter to “state a claim to relief that is plausible on

its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at

556. The complaint must contain more than “a

formulaic recitation of the elements of a cause of

action” and “naked assertion[s]” devoid of “further

37

factual enhancement.” Id. at 555, 557. The Court

assumes the plaintiff’s factual assertions to be true

and draws all inferences in the plaintiff’s favor. Id.

Motions to dismiss for failure to exhaust

administrative remedies are properly addressed as

motions to dismiss for failure to state a claim. See

Marcelus v. Corr. Corp. of Am./Corr. Treatment

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14 Page 5 of

12

Facility, 540 F. Supp. 2d 231, 235 (D.D.C. 2008). The

defendant bears the burden of proving that the

plaintiff failed to exhaust administrative remedies by

a preponderance of the evidence. E.g., Hudson v.

Children’s Nat. Med. Ctr., 645 F. Supp. 2d 1, 4

(D.D.C. 2009) (citing Bowden v. United States, 106

F.3d 433, 437 (D.C. Cir. 1997)).

While the Court cannot consider materials outside the

pleadings when deciding a motion to dismiss without

converting it to a motion for summary judgment, Fed.

R. Civ. P. 12(d), it can “consider documents attached

to or incorporated by the complaint in deciding a Rule

12(b)(6) motion without converting the motion into

one for summary judgment” including documents

referenced or cited to in a complaint. Marcelus, 540 F.

Supp. 2d at 235 (citing EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 n.3 (D.C. Cir.

1997)). Because Scott refers to her three EEOC

charges and their accompanying documents in her

complaint, Compl. ¶¶ 33–36, the Court deems them

incorporated into her complaint and will consider

them without converting the hospital’s motion into

one for summary judgment.

III. Analysis A. Disability and Retaliation Claims

(Counts I and IV)

The Court turns first to Scott’s disability and

retaliation claims. The hospital argues that both

38

claims should be dismissed because Scott did not raise

them in a timely fashion before the EEOC and thus

failed to exhaust her administrative remedy. Scott

responds that, even though her original and first

amended EEOC charge did not explicitly allege

disability discrimination or retaliation, the EEOC was

nonetheless put on notice of those charges by the

intake questionnaire and other materials that she

submitted with her initial charge. She also argues

that her second amended charge in 2013, which did

include disability and retaliation claims, “related

back” to her 2011 charges.

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 6 of 12

To bring a federal action under the ADA, a plaintiff

must first file an EEOC charge and await a response

from that agency. Marshall v. Fed. Express Corp.,

130 F.3d 1095, 1098 (D.C. Cir. 1997). As with Title

VII, a complainant must file the EEOC charge, at

most, 300 days after the alleged unlawful practice

occurred. Smith v. Janey, 664 F. Supp. 2d 1, 9 (D.D.C.

2009), aff’d sub nom., Smith v. Rhee, 09-7100, 2010

WL 1633177 (D.C. Cir. Apr. 6, 2010). Likewise,

“[r]etaliation claims that occurred prior to the filing

of a claim must be administratively exhausted”

through EEOC proceedings. Ndondji v. InterPark

Inc., 768 F. Supp. 2d 263, 278 (D.D.C. 2011)

(collecting cases).

A civil lawsuit “following the EEOC charge is limited

in scope to claims that are ‘like or reasonably related

to the allegations of the charge and [that] grow[] out

of such allegations.’” Park v. Howard Univ., 71 F.3d

904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S.

Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)).

Although the administrative charge requirement is

not intended to place “a heavy technical burden” on

plaintiffs, “[a] court cannot allow liberal

interpretation of an administrative charge to permit a

39

litigant to bypass the [EEOC] administrative

process.” Id. (citing Ostapowicz v. Johnson Bronze

Co., 541 F.2d 394, 398 (3d Cir. 1976)).

As described above, nothing on the face of Scott’s two

2011 EEOC charges indicated that she was basing her

claims on disability discrimination or retaliation. She

neither checked the “disability” or “retaliation” boxes

on the EEOC charge form nor included any factual

allegations whatsoever in the narrative portions of

the charge that would suggest a claim on either basis.

It was not until her 2013 EEOC charge, coming a year

after the 300-day statutory deadline to file had

passed, that she alleged discrimination on the basis of

disability and retaliation. The 2011 charges

themselves, then, did not place the EEOC on notice

that Scott was also claiming disability discrimination

and retaliation.

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 7 of 12

The inquiry does not end there, however. Scott also

points to several documents that she submitted to the

EEOC in connection with the filing of her initial

charges, which she claims raised both issues.

Regarding disability discrimination, Scott emphasizes

the EEOC questionnaire that accompanied her first

EEOC charge, which stated that office dust made it

difficult to breathe, and the attached “disability

certificates” that excused her from working. Opp. to

Mot. to Dismiss. Ex. 2 & 7. But these materials were

not sufficient to put the EEOC on notice that Scott

was alleging discrimination on the basis of disability.

That is so because Scott affirmatively marked in her

2011 EEOC questionnaire that she was not disabled

and did not mark “disabled” as a basis for

discrimination in either of her 2011 EEOC charges.

Mot. to Dismiss Ex. 1 & 2; Opp. to Mot. to Dismiss Ex.

7. To demonstrate notice of her retaliation claim,

40

Scott points to an email attached to her initial 2011

EEOC charge in which she complained to her

superiors about her difficulty breathing and her

altercation with Reinhart. Opp. to Mot. to Dismiss at

13–14 & Ex. 5. Again, however, this email did not put

the EEOC on notice that Scott was alleging

retaliation because it did not link the subject matter

of the complaint—an argument with Reinhart over

bothersome dust in the office—to her later

termination. For reasons explained in the following

section, moreover, the email does not implicate

protected activity under employment antidiscrimination laws. Scott’s failure to allege disability

or retaliation in her EEOC charge cannot be cured by

pointing to these extraneous documents that do not

suggest claims of disability discrimination or

retaliation. See Park, 71 F.3d at 907–908; Smith, 664

F. Supp. 2d at 9.

Scott also argues that she exhausted her

administrative remedy because her 2013 EEOC

charge “related back” to her earlier charge. EEOC

regulations provide that an amended charge may

“relate back to the date the charge was first received”

if the amendment is to “cure technical defects or

omissions” or “grow[s] out of the subject matter of

the original charge.” 29 C.F.R. § 1601.12. As the

EEOC found when it rejected Scott’s second amended

charge as untimely, her 2013 charge

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 8 of 12

meets neither of these criteria. Because disability

discrimination is a new substantive theory, separate

from her 2011 EEOC charge of age and race

discrimination, it does not grow out of the subject

matter of the original charge See Wilson v. Commc’ns

Workers of Am., 767 F. Supp. 304, 306 (D.D.C. 1991)

(because the “amendment added a new substantive

theory which is fundamentally distinct from the

41

original race discrimination charge[,]” it “did not

relate to, or grow out of [Plaintiff’s] original EEOC

charge”). And her 2013 race-based retaliation claims

do not relate back because “[d]iscrimination and

retaliation claims are considered distinct types of

claims that must be raised independently if the

retaliation occurred prior to the filing of the

administrative charge.” Ndondji, 768 F. Supp. 2d at

279 (citing Ponce v. Billington, 652 F. Supp. 2d 71,

73–74 (D.D.C. 2009) (holding that retaliation claim

could not relate back to a timely discrimination claim

based on the same subject matter)). Scott’s citation to

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992),

provides her no assistance because that case holds

that a plaintiff can bring a retaliation claim for the

first time in federal court when retaliated against for

filing an EEOC charge alleging discrimination. Id. at

590. Here, the alleged retaliation occurred before any

of Scott’s interactions with the EEOC, and should

have been brought to that agency in the first instance.

To sum up, because Scott’s 2011 charges did not give notice

of alleged disability discrimination or retaliation and her

2013 charges introduced these claims as new substantive

theories not found in the 2011 charges, Scott failed to raise

these claims in a timely fashion before the EEOC. The Court

therefore will dismiss Counts I and III of the complaint.

B. Failure to Plead an ADA Violation

Assuming for the sake of argument that Scott

properly raised her ADA claims in her 2011 EEOC

complaint, they still must be dismissed for failure to

plead discrimination on the basis of a disability. To

state a claim under Title II of the ADA, a plaintiff

must allege, among other things, that she is a

“qualified individual with a disability.” E.g., Alston v.

Dist. of Columbia, 561 F. Supp.

42

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 9 of 12

2d 29, 37 (D.D.C. 2008). An individual has a

“disability” under the ADA if she has “(A) a physical

or mental impairment that substantially limits one or

more major life activities; (B) a record of such an

impairment; or (C) is regarded as having such an

impairment.” 42 U.S.C. § 12102(1). EEOC regulations

further explain that the physical impairment must

“substantially limit[] the ability of an individual . . .

as compared to most people in the general

population.” 29 C.F.R. § 1630.2(j)(1)(ii).

Scott fails to plead that she has a condition

constituting a disability under the ADA. First, Scott

fails to allege any facts to support a reasonable

inference that the dust in her office “triggered” a

latent medical condition, Compl. ¶ 39, as opposed to

the far more logical conclusion to be drawn from the

events described in her complaint: that she simply

experienced shortness of breath as a symptom of

inhaling dust. See Twombly, 550 U.S. at 555

(“[f]actual allegations must be enough to raise a right

to relief above the speculative level”). Second, to

prove disability under the ADA, Scott must allege

facts showing that she had a physical impairment that

substantially limited a major life activity as compared

to the general public. 29 C.F.R. § 1630.2(j)(1)(ii).

While difficulty breathing, if severe enough, can

certainly constitute an impairment of a major life

function, Scott alleges that she had difficulty

breathing when she had to sit in a poorly ventilated

and dusty office along with the other co-workers who

shared her office. Compl. ¶¶ 15–19. Because this

impairment—namely the effect of dust on breathing—

is shared with the general public, it is not a disability

under the ADA. Desmond v. Mukasey, 530 F.3d 944,

955 (D.C. Cir. 2008) (“plaintiffs must show that their

limitation was substantial ‘as compared to the

average person in the general population.’” (quoting

43

Singh v. George Washington Univ. Sch. of Med., 508

F.3d 1097, 1100–04 (D.C. Cir. 2007))).

Third, Scott’s alleged impairment cannot be said to be

“substantially” limiting because she alleges that she

has difficulty breathing only while in a particular

office. See Haynes v. Williams, 392 F.3d 478, 483

(D.C. Cir. 2004) (impairment does not substantially

limit a major life function

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 10 of 12

“[i]f the impact of an impairment can be eliminated by

changing the address at which an individual works”);

Ellis v. Georgetown Univ. Hosp., 723 F. Supp. 2d 42, 49–

50 (D.D.C. 2010) (“Even if working in the Emergency

Department triggered uncontrollable asthma, that Ellis

could mitigate this effect by working in a different

location means that she is not disabled under the law.”).

In short, Scott’s allegations that she, along with her coworkers, had difficulty breathing when working in a

specific locale that was extremely dusty are insufficient

to plead a disability under the ADA.

C. Hostile Work Environment

To state a claim for hostile work environment, a

plaintiff must allege “‘discriminatory intimidation,

ridicule, and insult’ that is ‘sufficiently severe or

pervasive to alter the conditions of the victim’s

employment and create an abusive working

environment.’” Baloch v. Kempthorne, 550 F.3d 1191,

1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). The Court “looks to the

totality of the circumstances, including the frequency

of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an

employee’s work performance.” Id. (citing Faragher v.

City of Boca Raton, 524 U.S. 775, 787–88 (1998)). To

assert a claim for hostile work environment, the

44

plaintiff must demonstrate “‘some linkage between

the hostile behavior and the plaintiff's membership in

a protected class.’” Grosdidier v. Chairman of the

Broad. Bd. of Governors, 774 F. Supp. 2d 76, 109

(D.D.C. 2011), aff’d in part sub nom, 709 F.3d 19

(D.C. Cir. 2013) (quoting Na’im v. Clinton, 626 F.

Supp. 2d 63, 73 (D.D.C. 2009)). Having a disability, as

defined by the ADA, might render a plaintiff a

member of a protected class.

Because Scott’s alleged difficulty breathing is not a

disability under the ADA, see supra, she has failed to

demonstrate her membership in a protected class and

therefore failed to allege a hostile work environment

with respect to disability discrimination. See

Grosdidier, 774 F. Supp. 2d at 109. As to race

discrimination, however, Scott pleads sufficient facts

to overcome the hospital’s motion

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 11 of 12

to dismiss. She alleges that her immediate supervisor,

Reinhart, treated non-white employees more favorably

and that she discriminatorily revoked Scott’s overtime

privileges. Compl. ¶¶ 23–25.

Scott further alleges that Reinhart repeatedly

upbraided Scott and subjected Scott to “tirade[s] of

abusive and degrading comments[.]” Id. These

allegations, while lacking in detail, are just barely

sufficient to satisfy Scott’s burden at this stage to

plead facts that, taken as true, allow for a reasonable

inference of a violation of Title VII for hostile work

environment.

D. Failure to State a Cognizable Claim in Count

V

Scott’s final claim in her complaint is titled a

“CONTINGENT PENDANT COUNT FOR

WRONGFUL DISCHARGE UNDER DISTRICT OF

45

COLUMBIA LAW” and alleges a “violation of the

public policy as set out in the federal statutes . . . and

as such was a wrongful discharge[.]” Compl. ¶ 58.

Scott adds that this claim is “to be enforced only if the

federal violations set out in the previous counts are

not enforced and in which case this pendant count is

then referred to or taken up in the municipal court

system of the District of Columbia[.]” Id. While it is

unclear precisely what Scott is attempting to

accomplish with this language,2 at bottom, this

appears to be a claim for wrongful discharge under

D.C. law.

“Wrongful discharge” in the District of Columbia can

mean: (1) a termination that violates contractual

provisions; (2) a termination that violates a statute; or

(3) a termination that violates public policy because

the employee was fired for refusing to break the law

at the employer’s direction. Davis v. Gables

Residential/H.G. Smithy, 525 F. Supp. 2d 87, 101

(D.D.C. 2007) (collecting cases). The first and third

definitions are inapplicable here, and the federal

statutes Scott sues under “provide their own express

remedies for [the hospital’s alleged] misconduct and

__________________

2

Certainly, Scott cannot invoke this Court’s

jurisdiction while asking it not to adjudicate some of

her claims. And, whatever her counsel may assert in

the complaint, Scott cannot somehow hold a claim in

reserve so that if this Court rules against her on the

merits she could then bring the case to the D.C.

Superior Court for a second bite of the apple.

Case 1:13-cv-00600-CRC Document 14 Filed 07/28/14

Page 12 of 12

therefore cannot serve as predicates for a common law

wrongful discharge claim” under D.C. law. Hoskins v.

Howard Univ., 839 F. Supp. 2d 268, 281 (D.D.C. 2012)

(collecting cases). This claim will therefore be

dismissed.

46

IV. Conclusion

For the reasons above, the Court will grant the

hospital’s motion to dismiss counts I, IV, and V and

deny the motion as to count III with respect to Scott’s

claims of hostile work environment on the basis of

race. It will grant Scott’s motion for leave to file a

surreply. The Court will issue an order consistent

with this memorandum opinion.

CHRISTOPHER R. COOPER

United States District Judge

Date: July 28, 2014

The EEOC Washington Field Office

TO: File

FROM: Trent McGrath

DATE: January 28, 2015

RE: Karen Scott v. GW U Hospital

CHARGE: 570-2011-00475

01/03/11: Initial inquiry

09/25/11: 300 days

01/03/11: Charge:

Christian

08/26/11: Amend 1:

RB, age-54 years, religion

RB, age-54 years

01/17/13: CP’s 2nd attorney, Laurence Elgin, brought

to WFO a 2nd amended charge with a Motion to

Amend based on the doctrine of relation back, in

order to

Amend 2: 01/07/13: RB, age-54 yrs, disability,

retaliation (hostile)

47

01/23/13:

CP and her attorney came to WFO and met briefly

with TTM. It was explained that the 2nd Amended

Charge is untimely. CP’s attorney argued vigorously

that the charge related back to the original because

CP’s submissions included mention that her

breathing difficulties were central to her discharge

because CP was fired for propping open a door open to

get a door open to get a breeze. In her initial intake

CP said that she thought her supervisor was a witch

and emitted black dust that made it hard for CP and

others to breath.

On CP’s original intake questionnaire, did not check

that she had a disability. CP contended that the

original Intake Officer did advise CP to check that she

had a disability. It was pointed out to CP that she

was represented by her former counsel when she

amended the charge and disability was not added to

the charge.

ANALYSIS:

Age & Race: PS lists comparators of same race and

similar age as CP who were not discharged; PS also

states that CP was the only LPN in the position and

that all retained after a restructuring were RNs.

Relating back: CP’s 2nd Amended Charge is untimely,

her former counsel failed to mention disability as a

basis for discrimination and CP’s difficulty in

breathing around the black dust in her office does not

appear to be a disability under the law.

(cont.)

PDI: CP and her attorney were advised that her file

would be recommended for closure and that if closed,

CP will be issued NRTS and have 90 days from its

receipt to file a lawsuit if CP decides to do so.

48

ORDERS ON REHEARING AND EN BANC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 17-7061 September Term, 2017

1:13-cv-00600-CRC

Filed On: May 1, 2018

Karen H. Scott,

Appellant

v.

District Hospital Partners, L.P., agent of

George Washington University Hospital and

UHS of Delaware, Inc.,

Appellees

BEFORE: Henderson and Tatel, Circuit Judges;

Williams, Senior Circuit

Judge

ORDER

Upon consideration of appellant’s petition for panel

rehearing filed on April 5,

2018, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken R. Meadows

Deputy Clerk

USCA Case #17-7061 Document #1728855 Filed:

05/01/2018 Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 17-7061 September Term, 2017

1:13-cv-00600-CRC

49

Filed On: May 1, 2018

Karen H. Scott,

Appellant

v.

District Hospital Partners, L.P., agent of

George Washington University Hospital and

UHS of Delaware, Inc.,

Appellees

BEFORE: Garland, Chief Judge; Henderson, Rogers,

Tatel, Griffith,

Kavanaugh, Srinivasan, Millett, Pillard, Wilkins, and

Katsas, Circuit

Judges; Williams, Senior Circuit Judge

ORDER

Upon consideration of appellant’s petition for

rehearing en banc, and the

absence of a request by any member of the court for a

vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Ken R. Meadows

Deputy Clerk

USCA Case #17-7061 Document #1728856 Filed:

05/01/2018 Page 1 of 1

STATUTE AND REGULATION

AMERICANS WITH DISABILITIES ACT AS

AMENDED

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 126 - EQUAL OPPORTUNITY FOR

INDIVIDUALS WITH DISABILITIES §12101 et seq.

50

Sec. 12101 note: Findings and Purposes of ADA

Amendments Act of 2008, Pub. L. 110-325, § 2, Sept.

25, 2008, 122 Stat. 3553, provided that:

(a) Findings

(4) the holdings of the Supreme Court in Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999) and its

companion cases have narrowed the broad scope of

protection intended to be afforded by the ADA, thus

eliminating protection for many individuals whom

Congress intended to protect;

(5) the holding of the Supreme Court in Toyota Motor

Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.

184 (2002) further narrowed the broad scope of

protection intended to be afforded by the ADA;

(6) as a result of these Supreme Court cases, lower

courts have incorrectly found in individual cases that

people with a range of substantially limiting

impairments are not people with disabilities;

(7) in particular, the Supreme Court, in the case of

Toyota Motor Manufacturing, Kentucky, Inc. v.

Williams, 534 U.S. 184 (2002), interpreted the term

"substantially limits" to require a greater degree of

limitation than was intended by Congress; and

(8) Congress finds that the current Equal

Employment Opportunity Commission ADA

regulations defining the term "substantially limits" as

"significantly restricted" are inconsistent with

congressional intent, by expressing too high a

standard.

(b) Purposes

The purposes of this Act are-

51

(2) to reject the requirement enunciated by the

Supreme Court in Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999) and its companion cases that

whether an impairment substantially limits a major

life activity is to be determined with reference to the

ameliorative effects of mitigating measures;

(3) to reject the Supreme Court's reasoning in Sutton

v. United Air Lines, Inc., 527 U.S. 471 (1999) with

regard to coverage under the third prong of the

definition of disability and to reinstate the reasoning

of the Supreme Court in School Board of Nassau

County v. Arline, 480 U.S. 273 (1987) which set forth

a broad view of the third prong of the definition of

handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the Supreme

Court in Toyota Motor Manufacturing, Kentucky, Inc.

v. Williams, 534 U.S. 184 (2002), that the terms

"substantially" and "major" in the definition of

disability under the ADA "need to be interpreted

strictly to create a demanding standard for qualifying

as disabled," and that to be substantially limited in

performing a major life activity under the ADA "an

individual must have an impairment that prevents or

severely restricts the individual from doing activities

that are of central importance to most people's daily

lives";

(5) to convey congressional intent that the standard

created by the Supreme Court in the case of Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams, 534

U.S. 184 (2002) for "substantially limits", and applied

by lower courts in numerous decisions, has created an

inappropriately high level of limitation necessary to

obtain coverage under the ADA, to convey that it is

the intent of Congress that the primary object of

attention in cases brought under the ADA should be

whether entities covered under the ADA have

complied with their obligations, and to convey that

52

the question of whether an individual's impairment is

a disability under the ADA should not demand

extensive analysis; and

(6) to express Congress' expectation that the Equal

Employment Opportunity Commission will revise that

portion of its current regulations that defines the

term "substantially limits" as "significantly restricted"

to be consistent with this Act, including the

amendments made by this Act.

Sec. 12102. Definition of disability

As used in this chapter:

(1) Disability

The term "disability" means, with respect to an

individual

(A) a physical or mental impairment that

substantially limits one or more major life activities of

such individual;

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), major life activities

include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating,

sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking,

communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity

also includes the operation of a major bodily function,

53

including but not limited to, functions of the immune

system, normal cell growth, digestive, bowel, bladder,

neurological, brain, respiratory, circulatory,

endocrine, and reproductive functions.

(4) Rules of construction regarding the definition of

disability

The definition of "disability" in paragraph (1) shall be

construed in accordance with the following:

(A) The definition of disability in this chapter shall be

construed in favor of broad coverage of individuals

under this chapter, to the maximum extent permitted

by the terms of this chapter.

(B) The term "substantially limits" shall be

interpreted consistently with the findings and

purposes of the ADA Amendments Act of 2008.

(B) The term "substantially limits" shall be

interpreted consistently with the findings and

purposes of the ADA Amendments Act of 2008.

(D) An impairment that is episodic or in remission is a

disability if it would substantially limit a major life

activity when active.

OTHER MATERIAL ESSENTIAL TO

UNDERSTANDING THE PETITION

Dr. Rosaline Fraser United Medical Center, LLC.

6201 Greenbelt Road, Suite L5

Berwyn Heights, Maryland 20740

Tel: (301) 441-1234 Fax (301) 441-1235

DISABILITY CERTIFICATE

This is to Certify that __Karen_Scott__

54

Is/was disabled and therefore unable to perform

his/her usual work duties from

__8/30/10____to___9/9/10_____

will be re-evaluated in our office on ___________

/ can resume LIGHT work duties on __United Medical

Center LLC.

*****

Rosaline_Fraser,_M.D.___/s/__9/8/10__

DISABILITY CERTIFICATE

Dr. Rosaline Fraser United Medical Center, LLC.

6201 Greenbelt Road, Suite L5

Berwyn Heights, Maryland 20740

Tel: (301) 441-1234 Fax (301) 441-1235

This is to Certify that __Karen_Scott__

xIs/was disabled and therefore unable to perform

his/her usual work duties from

__April_1_2010____to___April_8,_2010_____

*****

xCan resume FULL (regular) work duties on

April_9,_2010___

*****

Rosaline_Fraser,_M.D.___/s/A. Laharty__9/8/10__

__Maryland_Uniform_Consultation_Referral_Form__

Main Hosp.

1st Floor

Suite C

Primary or Requesting Provider

Last, First, MI

Specialty

Fraser, Rosaline

Family Practice

Practice or Group Name

United Medical Center, LLC.

55

*****

Consultant/Facility Provider

Last, First, MI

Specialty

Park, Octavius D.

Pulm.

Address, Street#, City, State, Zip

HUH 2041 Georgia Ave NW #5000 Washington DC

20060

*****

Referral Information

Reason for Referral: Allergies/S of B affects job

History, Diagnosis and Test Results

eval file Pat Ob

*****

/s/

__Maryland_Uniform_Consultation_Referral_Form__

Date of Referral___5/3/10__

____Patient Information___

Last, First, MI

___Scott__Karen___

*****

Primary_or_Requesting_ Provider

___Fraser,_Rosaline___Family_Practice__

*****

__Consultant Facility Provider__

Practice or Group Name

__Washington__Rad___

Address, Street#, City, State, Zip

__2141 K Street NW___Washington, D.C.

___Referral Information___

Reason for Referral:__D__SoB__H/O_H/D (illeg.)_bfm

53 yrs

Brief History, Diagnosis and Test Results

__D Can 2 views__

__D mamgram 5(illegible)__ *5/5/10 @4:00 PM

56

Georgetown

University

Hospital

PULMONARY/CRITICAL CARE

Washington, D.C. 20007

***** MEDICAL RECORD NUMBER 7000740

VISIT # 53344

INVC

DATE OF SERVICE

07/30/2010 BILLINGS AREA PUL LOC DO F5O #

G643 F5O NAME UNITED HEALTHCARE

PATIENT NAME SCOTT, KAREN DATE OF BIRTH

09/25/1956

PHYSICIAN/PROVIDER

VINAYAK,

MD, AJEET G. IDX# 112072

*****

PROCEDURES

*****

Pleural Biopsy (illegible handwritten note)

*****

DESCRIPTION

*****

Chronic Tracheobronchitis (illegible handwritten

note)

*****

INDICATE INITIAL DIAGNOSIS AND ANY

ADDITIONAL DIAGNOSES IN RANKED ORDER

1

786.05

*****

EXHIBIT 3

SCOTT v DISTRICT HOSPITAL PARTNERS, L.P.,

et al

13-cv-0600

Exh. 1

Case 1:13-cv-00600-RMC Document 8-3 Filed 09/30/13

Page 2 of 3

Page 1 of 2

57

Subj.: George Washington Univ.—Bad Air

Quality

Date: 4/12/2010 1:50:47 PM Eastern Standard Time

From: kshScott@aol.com

To: rcohen@katorparks.com

Thank you for speaking with me today, it was truly a

pleasure putting a face to a voice. KPW is lucky to

have you!

I have attached and cut and pasted a draft letter to/in

this email, my system is getting old so I am not sure

which is better for you. I am not sure if I conveyed

that during the whole conversation Beth Reinhart

was yelling and screaming at me, almost at the top of

her voice. It was embarrassing and humiliating. The

other nurse next to me had her back turned and was

on the phone making reservations for her and her

nieces to go to Hawaii the whole time. I know others

were in the office, but I was so focused on Beth I

didn’t look to see who was there. I just wanted to get

the heck out!

Thanks,

Karen Scott

1113 6th Street, NW

Washington, D. C. 20001

H 202-737-5522

April 12, 2010

Memo

To: Beth Reinhart, Director, Case Management

Department

From: Karen Scott, LPN, Case Management Associate

Subject: Employee Corrective Action dated 4/12/10

58

I am in receipt of a note to my personal file

concerning an incident that happened on April 1st in

the Case Management Office. Yes, I had propped

open the back door in between the Case Management

and the Nursing Office. When Beth came by and

inquired about the door being open, I replied, “I can’t

breath”. Beth then started to go out the door and

turned back and asked if it was because I was hot? I

and the nurse next to me both have fans on our desk

as it does get hot and stuffy periodically. I again

replied, no”I can’t breath”. Beth then said nothing

about me going home because I was feeling ill

(actually at no time in the conversation did she ever

say anything about my not being able to breath she

completely ignored that fact), she then ordered me to

come into her office right then. when I got into her

office I told her I was unable to breath, my nose was

bleeding, my face was burning, and I was unable to do

my work because of this—I am sure at that point I

tried to direct her attention to the air quality as well.

Beth then went off ranting and I do mean ranting and

screaming like I was some child or idiot—she stated

that I was “crazy” and “I needed to see a doctor”; I

was having problems getting out whole sentences but

I did let her know that she was not a licensed MD,

and I was not consulting her on behalf of my mental

state or anything else, and that I did not want to hear

her ranting’s. I also stated that if she was having a

problem with understanding that I could not breath—

please—don’t make me have to get a lawyer to explain

it to her; and I said please. She got madder—she then

told me to get my things and leave, she would call me

and let me know when I could return to work. She

stayed in her office for a few minutes, and then came

out while I was trying to get my stuff together. I took

my church calendar off the wall and was trying to

decide what else of mine to get as this sounded like a

termination to me. Beth then said something about I

was taking stuff like I was not coming back, and for a

second she seemed like her usual self, but then she

snapped back into this mad person and said I was

59

taking to long. I looked at her and said, “I didn’t

realize that I was being timed!” She then threatened

to call security on me! There was no please or any

type of cordial communication from Beth. Others in

the office have complained about her (Beth’s)

attitude, up to this point I usually tune her out and

the last time there was a complaint I was right there

but I truly was not listening when another employee

had a problem with her. But now I see. I don’t know

if she

Case 1:13-cv-00600-RMC Document 8-3 Filed 09/30/13

Page 3 of 3

Page 2 of 2

does not know how to talk to people or does not know

how to talk to black people.

Now the main front door into the hallway has been

unlocked for the past week. I have personally talked

to two vendors who just walked into the office as the

door was unlocked, I took their information and asked

them to leave. Beth was there both times and was

aware that the front door was malfunctioning. I have

also complained about “air quality” in the office on a

previous occasion. I was told that my work area

would be rearranged, it never happened. I do not

have a confrontational personality, if anything I am

way too passive, I get walked all over.

******

Plaintiff excerpted responses from EEOC intake

questionnaire as filed as Exhibit 7 to plaintiff’s

Opposition to Motion to Dismiss as that Opposition is

excerpted below:

walked for 1-wk because I Opened inner door for air-I

could not breath

Person responsible Beth Reinhart

60

I c/o about “dust” in office that was burning my face,

eyes and nose. c/o difficulty breathing, had Dr’s

slips—noting done.

No reasons given, no corrective actions taken.

Harassment continued until termination.

*****

Excerpts from EEOC intake officer’s intake notes,

Exhibit 8 to the Opposition excerpted below.

The CP brought in doctor’s note indicating the office

environment was causing her medical problems.

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 1 of 26

*****

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KAREN SCOTT

Plaintiff, )

Case No. 1:13-cv-0600 RMC

vs.

DISTRICT HOSPITAL PARTNERS, L.P., et al.

Defendants.

PLAINTIFFS MEMORANDUM OF POINTS

AND AUTHORITIES IN OPPOSITION TO THE

DEFENDANTS’ MOTION TO DISMISS COUNTS

I, III, IV AND V OF PLAINTIFF’S COMPLAINT,

OR IN THE ALTERNATIVE, MOTION FOR

PARTIAL SUMMARY JUDGMENT

61

Laurence A. Elgin Bar # 159582

601 Pennsylvania Ave., N.W.

Suite 900 South Building

Washington DC 20004

(202) 628-1114

lawnet.lae@gmail.com

Counsel for Plaintiff

*****

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 6 of 26

*****

We attach as Exhibit 1 hereto a copy of a 2 page

memo to the file from Trent McGrath of the EEOC.

He was the investigator there of the plaintiff’s case.

Note that in it Mr. McGrath mentions our invocation

of

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 6 of 26

the doctrine of relation back [with no quotation

marks] and concludes at the bottom of p. 1 that

the difficulty of the plaintiff in breathing “does not

appear to be a disability under the law.” There is no

supporting documentation for this conclusion. Mr.

McGrath is certainly not a person of any medical

qualifications to render such an opinion and the

EEOC has no such experts in house even if they had

bothered to look further into the question than

coming to an instant conclusion based on no informed

knowledge, which they did not do.

C. An Uninformed Conclusion at the EEOC: No

Medical Expertise

We point out this last because in coming to such a

quick conclusion based on no medical

expertise or indeed, no investigation of the plaintiff’s

medical situation, Investigator McGrath

62

failed to pay any attention to the exhibits that were

attached to the plaintiff’s formal motion to

amend with its argument for relation back of her ADA

and retaliation charges, the motion that is

amended in ¶ 3 on p. 1 of Mr. McGrath’s memo. At

least there is no indication that those exhibits were

considered or that any investigation into the

plaintiff’s medical situation was made. Because of

that quick conclusion that was arrived at by

Investigator McGrath it appears that at the EEOC the

doctrine of relation back was not actually examined to

see whether it applied or not. Such an investigation

was not made because of the quickly arrived at

unsupported and uninformed conclusion that the

plaintiff did not have a medical disability.

Since that motion to amend is itself a public record

filed with the EEOC we attach hereto as additional

exhibits copies of the medical documents that

accompanied it as exhibits to it so that the Court can

see that Mr. McGrath’s uninformed conclusion was

contrary to the documentation put before him and the

EEOC and ask that they be taken judicial notice of.

Instead of paying any attention to these documents

opinions from medical providers Investigator

McGrath justified his quick conclusion by a reference

to the plaintiff’s speaking of “black dust”

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 8 of 26

that affected her ability to breath. The abiding

presence of thick black dust certainly can have an

effect on the ability of a person with the plaintiff’s

medical problems to breath but her referring

to the black dust under the circumstances and in light

of the documents provided to the EEOC

does not justify isolating her observations about black

dust it as if that were all that was involved

63

and using that single factor as the sole support for a

medically uninformed conclusion. We attach these

documents hereto as Exhibits 2A0, 2B0, 2C0, 2D0 and

2E0, the same exhibit numbers that they had as

exhibits to the Motion to Amend as submitted to the

EEOC. They are, respectively, two disability

certificates signed by Dr. Rosaline Fraser, M.D., the

plaintiff’s attending physician for her disability, a two

page certificates of referral Washington Radiology for

examination for, inter alia, SB (shortness of breath)

as affecting her job and, lastly a report from a

specialist in such matters at Georgetown University

Hospital to whom she was referred, ultimately, Dr.

Ajeet Vinayak, M.D.

We ask the Court to take particular notice of the

blank at the bottom of the page on the

left under the heading: “INDICATE PRIMARY

DIAGNOSIS AND ANY ADDITIONAL

DIAGNOSES IN RANKED ORDER.” It can be seen

that some numbers have been handwritten

in the first blank space to be filled in under this

heading. They did not come out distinctly in the

photocopying but we note that by examining what did

come through that it can be seen that the marks are

consistent with the number 786.05. This is a number

code used by medical providers which is propounded

by the World Health Organization and is known as

the ICD-9 code where ICD stands for International

Classification of Diseases. twill by we will ask the

Court to number code The status and significance of

this WHO recognized Code can be found online at

About.com under “patient empowerment.” A

description of what the code ICD-9 number 786.05

refers to can be found online at ICD9Data.com under

“2011 ICD-9-CM Diagnosis Code 786.05

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 9 of 26

64

where it is shown to be “Shortness of Breath.” If you

look up Shortness of Breath in what has become for

medial providers the Webster’s of the Internet, the

Free Medical Dictionary at can even be fatal. We can

only live for a short time without any air and reduced

air can cause serious symptoms that can steadily

increase to the point of an inability to function. The

variety that the plaintiff suffers from you can see

there is also known as chronic dyspnea. Note that it

can be caused by underlying disorders but need not

be. We believe that notice can be taken of these

universal sources at this stage.

D. The Specifics of the Defendants’ Invalid

Relation Arguments Re: the ADA claims

Having pointed out that despite the uninformed and

hasty decision of the EEOC investigator, the plaintiff

is afflicted with a serious medical disability, we

examine some of the arguments advanced by the

defendants in their motion’s support memo to come to

the same conclusion that the EEOC investigator came

to. If the arguments of the defendants on this point

are no better than the uniformed conclusion of the

EEOC investigator on this point, then the question of

relation back needs to be examined objectively by this

Court.

*****

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 12 of 26

*****

remedies (brief, p.6)(footnote omitted) they cite to

support their contentions the well known case in this

circuit of Marshall v. Federal Express Corp., 130 F.3d

1095 (D.C.Cir.1997) at 1098. In doing so we point

out that they fail to take into account something that

the Court of Appeals held in that same case

65

on the same page. The holding omitted by the

defendants is that an EEOC “charge” is to be

“read in conjunction with its accompanying papers.”

We have already referred to and put forward as

exhibits the accompanying medical papers that

accompanied the plaintiff’s initial charge as it was

filed with the EEOC as they were then attached to the

Motion to Amend before the EEOC which was denied.

With the above holding in mind we attach here

further documents that were submitted to the EEOC

by the plaintiff at the time of her original charge and

were then subsequently filed again as attachments to

the plaintiff’s Motion to Amend that was fled with the

EEOC. Exhibit 3 to this memo is what was Exhibit 1

to the Motion to Amend that was filed with the

EEOC. It is a two page memo from the plaintiff to an

attorney who was investigating her case at the time.

In it she clearly states her symptoms of her shortness

of breath condition as making her unable to work at

the hospital in the room in which she was forced to

work. Exhibit 4 to this memo is what was exhibit 3 to

the Motion to Amend filed with the EEOC as having

been filed there at the time of the original charge. It is

a 1 page memo from the plaintiff’s immediate

supervisor at GWUH, Beth Reinhart, in which Ms.

Reinhart acknowledges the plaintiff’s complaints

about the (footnote omitted)

Case 1:13-cv-00600-RMC Document 8 Filed 09/30/13

Page 13 of 26

severe symptoms of the plaintiff’s disability. Exhibit 5

to this memo is another memo from the plaintiff. It is

to Ms. Reinhart’s two supervisors up the chain of

command at GWUH, Richard Davis and, above him,

the Medical Director, Dr. Gary Little advising them of

the severe nature of the plaintiff’s symptoms that she

was suffering in the room in which she was forced to

work because of the lack of circulating air. In it the

66

plaintiff informs them that she had provided to both

Ms. Reinhart and the GWUH HR department doctor’s

certificates about her disability. It is dated November

14, 2010. These papers were all provided to the EEOC

at the time of plaintiff’s filing her original charge

there and again when she filed her motion to amend.

At the time of filing her motioin to amend the

plaintiff filed a new EEOC charge form 5 (Exhibit 6)

in which she swore under penalty of perjury to the

truth and accuracy of the papers provided to the

EEOC at the time of filing her original charge.

*****