Case 1:01-cv-02361-JSG Document 1 Filed 11/13/01 Page 1 of 15

IN THE UNITED STA;I'ES DISTRICT COURT

FOR THE DISTRtcT OF COLUMBIA

f.

CIVIL DIVISION

MS. RENAE MARABLE 5003 HUNT STREET, N.E. APARTMENT 22 WASHINGTON, D.C. 20019

FILED
_ .. NOV 1 3 2001

~,-.
-AND-

MS. JANETTE ADAMS 7509 HARPERS DRIVE FORT WASHINGTON, MARYLAND 20744

-AND-·

MS. KATHLEEN MCDONALD

CASE NUMBER 1:01CV02361

6105 BREEZEWOOD COURT

I '

APARTMENT 204

JUDGE: Henry H. Kennedy

GREENBELT, MARYLAND 20770

' DECK 'l'YPE: Employment Discrimination

-AND-

DA'l'E S'l'AMP: 11/tl/2001
13

MS. ZAKIYYAH MUHAMMAD 2656 BOWEN ROAD S.E. APARTMENT 302 WASHINGTON, D.C. 20020

-AND-

MS, CAROLYN MURPHY

20 18TH STREET, S.E.

WASHINGTON, D.C. 20003

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-'ffND-

.fJ.

,·i;;~.i

MS. NANCY PRINCE 7807 WESTOVER LANE CLINTON; MARYLAND 20735,

ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,

PLAINTIFFS

Case 1:01-cv-02361-JSG Document 1 Filed 11/13/01 Page 2 of 15

v.
DISTRICT HOSPITAL PARTNERS, LP. D.B.A. GEORGE WASHINGTON UNIVERSITY HOSPITAL 901 23RD STREET, NW WASHINGTON, D.C. 20037
SERVE:
CT CORPORATION SYSTEM 1025 VERMONT AVE, N.W. WASHINGTON, D.C. 20005
DEFENDANT

Civil Action No.

COMPLAINT AND JURY DEMAND
The Plaintiffs, on behalfof themselves and all others similarly situated, hereby allege the
following:

I. PRELIMINARY STATEMENT. 1. Plaintiffs bring this action to challenge the race discrimination committed by District Hospital Partners, LP., doing business as George Washington University Hospital (hereinafter "GWUH"), against African-American employees of GWUH who worked as Nursing Assistants on or after July 24, 1998, at which time the Defendant informed all Nursing Assistants that it was terminating their employment effective November 15, 1998. The employment policies and practices of GWUH complained of herein have the effect of denying employment and equal compensation to qualified African-American Nursing Assistants in violation of Title VII of

Complaint- Page 2

LIPPMAN 1'1 SEMSKER, PLLC
I 120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

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the Civil Rights Act of 1964, 42 U.s:c. § 2000e et seq. and the Civil Rights Act of 1991,42
U.S.C. § 1981a. Plaintiffs sue on behalf of themselves and a class of all similarly-situated African-American former Nursing Assistants of GWUH.

II. JURISDICTION 2. This Court has subject-matter jurisdiction pursuant to 42 U.S.C. § 2000e-5(f), 28 U.S. C.§ 1343(a)(4), and 28 U.S.C. § 1331. The jurisdiction of this Court is invoked to secure
protection of and to redress deprivation of rights secured by 42 U.S.C. § 2000e et seq., providing
for injunctive and other relief against, inter alia, racial discrimination in employment. 3. This Court has personal jurisdiction over the defendant GWUH because it does
business and is headquartered in Washington, D.C.

III. VENUE. 4. Venue is properin this district pursuant to 42 U.S. C.§ 2000e-5(f)(3) and 28 U.S.C. §§ 139l(b) & (c). GWUH's principal place of business is located in the District of Columbia and a substantial part of the unlawful acts set forth below occurred in this district.

.

'

IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES.

5. Plaintiffs have exhausted their administrative remedies pursuant to 42 U.S.C.

§ 2000e-5(f)(3).

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LIPPMAN & SEMSKER, PLLC
1120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

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6. Plaintiff Marable filed a timely charge of discrimination on her own behalf and on behalf of all remaining named Plaintiffs with the United States Equal Employment Opportunity Commission on or about April2, 1999, complaining ofthe acts which give rise to this lawsuit.
7. On August 14,2001, Plaintiffs' counsel, on behalf of Plaintiffs, received a notice of her right to sue within 90 days, and this suit is timely brought on behalf of Marable, all other named Plaintiffs, and on behalf of themselves and all others similarly situated.

V. PLAINTIFFS.

8. Plaintiff Renae Marable was a Nursing Assistant until she was terminated on

November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to

complete the Multi-skilled Technician training. Ms. Marable passed seven of the ten tests before

failiRg the Gastro-Intestinal module. Ms. Marable had been employed by GWUH for

approximately ten years. Ms. Marable passed the math, reading, and writing tests which were a

prerequisite to taking the Multi-skilled Technician training course.

9. Plaintiff Jeanette Adams was a Nursing Assistant until she was terminated on

November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to

complete the Multi-skilled Technician training. Ms. Adams did not pass the math, reading, and

writing tests which were a prerequisite to taking the Multi-skilled Technician training course.

Ms. Adams had been employed by GWUH for approximately 25 years at the time of her

termination.

10. Plaintiff Kathleen McDonald was a Nursing Assistant until she was terminated

on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed

Complaint- Page 4

LIPPMAN & SEMSKER, PLLC 1120 G Street, NW, Suite 2DO
Washington, D.C. 20005 (202) 824-8100

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to complete the Multi-skilled Technician training. Ms. McDonald did not pass the math, reading,

and writing tests which were a prerequisite to taking the Multi-skilled Technician training course.

Ms. McDonald had been employed by GWUH for approximately ten years at the time of her

termination.

11. Plaintiff Zakiyyah Muhammad was a Nursing Assistant until she was terminated

on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed

to complete the Multi-skilled Technician training. Ms. Muhannnad passed the math, reading,

and writing tests which were a prerequisite to taking the Multi-skilled Technician training course,

but did not pass all of the tests required pursuant to the Multi-skilled Technician training. Ms.

Muhannnad had been employed by GWUH for approximately five years.

12. Plaintiff Carlene Murphy was a Nursing Assistant at July 1998, when Defendant

informed her that it would require her to talce math, reading, and writing tests in order to remain

employed by Defendant. Ms. Murphy refused to take the math, reading, and writing tests

because she was afraid that she might not pass and because she thought it was unfair. Ms.

Murphy had been employed by GWUH for about five years at that time. Ms. Murphy became

employed as a part-time Nursing Assistant in GWUH's Float Pool after she was terminated from

her position as a regular full-time Nursing Assistant.

13. Plaintiff Nancy Prince was a Nursing Assistant until she was terminated on

November 15, 1998, b~cause the Nursing Assistant job she held was eliminated and she failed to

complete the Multi-skilled Technician training. Ms. Prince did not pass the math, reading, and

writing tests which were a prerequisite to taking the Multi-skilled Technician training course.

Ms. Prince had been employed by GWUH for more than five years at the time of her termination.

Complaint - Page 5

LIPPMA."! & SEMSKER, PLLC
1120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

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''C·/
VI. DEFENDANT. 14. George Washington University Hospital is the trade name of District Hospital Partners, L.P. Defendant District Hospital Partners, L.P., doing business as George Washington University Hospital, is a for-profit business located in and doing business in the District of Columbia. District Hospital Partners, L.P ., doing business as George Washington University Hospital, is an employer and was the Plaintiffs' employer within the meaning of Title VII of the Civil Rights Act of 1964.

VII. CLASS ACTION.

15. This action is brought by the Plaintiffs as a class action pursuant to 42 U.S. C.

§ 2000e et seq., and pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all

present and former African-American Nursing Assistants who were employees ofthe Defendant

GWUH at any time between July 28, 1998, and November 15, 1998.

16. Defendant engaged in employment practices that emanate from a common plan or

scheme that uniformly governed all Nursing Assistants throughout its facility. Defendant's

employment practices affected the rights of members of the class throughout its facility by

limiting and classifYing black employees iu ways which deprive them ofequal employment

opportunities and otherwise effect their status, compensation, and benefits as employees because

of their race. Under the aforesaid circumstances, the common interests of the class are such that

any interest of the individual members of the class is outweighed by the desirability of

concentrating the controversy in a single forum, and a class action is superior to any other

available method for the fair and efficient adjudication of the controversy.

Complaint - Page 6

LIPPMA<'I & SEMSKER, PLLC 1120 G Street, NW, Strite 200
Washington, D.C. 20005 (202) 824-8100

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17. Plaintiffs request that the Court certifY a class consisting of all present and former
African-American Assistant Nurses who were employees of the Defendant GWUH at any time
between July 28, 1998, and November 15, 1998.
18. This action is properly commenced as a class action under Rule 23(a) because the
requirements of this Rule are met, as explained in Paragraphs 19 through 22.
19. The class members are sufficiently numerous to make joinder of all members
impracticable. Upon information and belief, GWUH employed approximately one hundred
twenty-five African-American Assistant Nurses.
20. The claims alleged on behalf of the Plaintiffs raise questions of law or fact
common to the class. These common questions include, but are not necessarily limited to, the
following:
a. whether the requirement that Nursing Assistants request a transfer to become a Multi-skilled Teclmician and thereby avoid termination disproportionately negatively affected the terms and conditions of African-American employees, in violation of Title VII;
b. whether the math, reading, and writing tests disproportionately negatively affected the terms and conditions of African-American employees, in violation of Title VII;
c. whether the putative business reasons for testing the candidates' math, reading, and writing skills could have been met through other means, in violation of Title VII;
d. whether the examinations provided at the end of each of the ten classes in the Multi-skilled Teclmician training disproportionately negatively affected the terms and conditions of African-American employees, in violation of Title VII;
e. whether the putative business reasons for testing the candidates' knowledge at the end of each of the ten classes in the Multi-skilled Technician training could have been met through other means, thereby violating Title VII;

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LIPPMA.'I & SEMSKER, PLLC 1120 G Street, NW, Suite 200
Washington, D.C. 20005 (202) 824-8100

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f.

whether the subject matter of the ten classes in the Multi-skilled Technician

training accurately reflected the tasks performed by the Multi-skilled Technicians;

and

g. whether the tasks performed by Multi-skilled Technicians were materially different from the tasks performed by the Nursing Assistants.

21. The claims alleged on behalf of plaintiffs are typical of those of the class. All of

the claims arise from GWUH's policy pursuant to which Defendant tem1inated the employment of

all Nmsing Assistants and instituted a policy requiring that all Nmsing Assistants employed as of

July 28, 1998, (a) complete a Request to Transfer form within two weeks; (b) pass three

examinations testing math, reading, and writing; (c) attend a ten-week training course; and

(d) pass ten examinations dll'ing the training course.

22. The class representatives will adequately and fairly protect the interest of the class

because they have the same interests as the class and no conflicts exist within the class. The

class counsel will adequately and fairly protect the interest ofthe class because they are

competent and experienced lawyers specializing in employment discrimination cases.

23. This class action is properly maintainable as a class action under Federal Rule of

Civil Procedme 23(b)(2) because the Defendant has acted on grounds generally applicable to the

class, thereby malcing appropriate final injunctive relief or corresponding declaratory relief with

respect to the class as a whole.

24. The class action is also properly maintainable pursuant to Federal Rule of Civil

Procedme 23(b)(3) because the questions oflaw and fact common to members of the class

predominate over questions affecting only individual members and a class action is superior to

other available methods for the fair and efficient resolution of this controversy.

Complaint- Page 8

LIPPMAN & SEMSKER, PLLC I 120 G Street, NW, Suite 200
Washington, D.C. 20005 (202) 824-8100

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VIII. FACTUAL ALLEGATIONS. 25. Prior to November 1998, GWUH employed approximately one hnndred twenty-five Nursing Assistants. 26. The Nursing Assistants performed basic nursing skills as assistants to and supervised by registered nurses. Nursing Assistants' job responsibilities included taking vital signs, collecting stool and urine specimens, explaining to patients how to use spirometry equipment, recording patient intakes and outputs, bathing patients, assisting with colostomy care, and the like. In addition, some of the Nursing Assistants performed other job duties from timeto-time, such as inserting Foley Catheters, changing dressings, and testing blood-glucose levels. Many of the Nursing Assistants had participated in various classes to improve their skills, including gaining certification as Nursing Assistants and learning particular job-related skills. 27. The Nursing Assistants are almost exclusively African-American women. Upon information and belief, approximately 95% of the Nursing Assistants were African-American, and virtually all of the remaining 5% were other minorities. Upon information and belief, only a couple of Nursing Assistants were Caucasian. 28. In July 1998, GWUH notified all Nursing Assistants that it would be terminating their employment effective November 15, 1998. At the same time, GWUH created a new position called Multi-skilled Technician. GWUH required if a Nursing Assistant wished to become a Multi-skilled Techpician, she must (a) complete a Request to Transfer form within approximately two weeks; (b) pass three examinations; (c) attend a Multi-skilled Technician training course; and (d) pass examinations during the training course.

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LIPPMA-N & SEMSKER, PLLC
1120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

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29. Before a Nursing Assistant was permitted to take the Multi-skilled Technician training course, she was required to pass three preliminary written examinations. One examination tested basic arithmetic, another tested reading comprehension, and the third examination tested writing. The passing grade for all three examinations was fixed arbitrarily at eighty.
30. The nominal purpose of the tests was to ascertain whether the Nursing Assistant possessed certain qualifications which GWUB claimed would be necessary in order to complete the Multi-skilled Technician training. In fact, the skills tested by the pre-training examinations were not reasonably related to the training or the job responsibilities of the Multi-skilled Technician position.
.3 I. The .Defendant's own validation study established that the some of this testing had a disparate impact on African-American candidates.
32. Virtually all of the Nursing Assistants took the math, reading, and writing examinations. Approximately three-quarters of them failed to pass all three tests.
33. After the Nursing Assistant passed the math, reading, and writing examinations, she was required to attend the Multi-skilled Technician training course, consisting often classes. Each class, about one hour long, would end with a written examination.
34. Approximately one-quarter of the Nursing Assistants failed to pass all of the ten weekly tests.
35. The examinations during the training course included testing in skills unrelated to the actual job responsibilities of the Multi-skilled Technician position. For example, though the

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LIPPMA.c'l & SEMSKER, PLLC
1120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

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Gastro-Intestinal test covered tube feeding, the Multi-skilled Technicians are not now performing

tube feeding as part of their responsibilities.

36. The Multi-skilled Technicians are performing the same tasks as they were

performing as Nursing Assistants. Multi-skilled Technicians perform only a few additional

tasks, such as doing EKGs, and those few additional tasks are not done by all of the Multi-skilled

Technicians. Moreover, those additional tasks are rarely done by Multi-skilled Technicians.

Some additional job duties not performed by Nursing Assistants but which were once performed

byMulti-skilled Technicians have been discontinued, such as drawing blood.

37. Prior to eliminating the Nursing Assistant positions, GWUH assigned three Nursing

Assistants to each floor during each shift. After the Nursing Assistant positions were eliminated,

the Nursing Assistants were replaced with one MST and one Nursing Assistant from the float

pool. Onsome occasions, GWUH hires Nursing Assistants and Multi-skilled Technicians from

independent agencies.

38. Many of the Nursing Assistants possess medical certificates attesting to their basic

medical skills. In many instances, the Nursing Assistants have been employed by Defendant for

many years. A substantial number of nurse assistants who did not pass Defendant's tests were in

fact highly qualified for the position because they possessed the necessary skills.

39. Only those Nursing Assistants who completed the Request to Transfer form,

passed the two pre-training examinations, attended the training course, and passed the

examinations during the training course were permitted to become Multi-skilled Technicians.

40. The Defendant's requirements have had a disparate impact on African-American

employees of GWUH.

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Washington, D.C. 20005 (202) 824-8100

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41. GWUH has employed many of the Nursing Assistants who failed the as Multiskilled Technician examinations as part-time Nursing Assistants to work in the float pool. Many Nursing Assistants declined to work for GWUH in the float pool because GWUH informed them that the assignments would only last two months; in fact, the assignments continue to this day. These part-time positions offered no fixed hours and no fringe benefits, including health insurance, life insurance, paid holidays and vacations, pensions, and retirement matching funds. From time-to-time, these employees have been employed on a full-time basis because of the continuing need for the medical care provided by the terminated Nursing Assistants. Upon information and belief, one or more part-time Nursing Assistants in the float pool have been given permanent employment as Nursing Assistants.
42. The Multi-skilled Technicians spend most of their work time performing the same tasks that the Nursing Assistants had performed. In fact, upon information and belief, many Multi-skilled Technicians who were hired from outside the pool of Nursing Assistants left GWUH because of dissatisfaction with the job responsibilities, which closely resembled the duties of Nursing Assistants.
43. GWUH has approximately thirty Multi-skilled Technicians, half of whom had been Nursing Assistants.
44. Persons who were hired as Multi-skilled Technicians who were not Nursing Assistants were not required to attend the ten-week training course.

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COUNT ONE DISPARATE IMPACT DISCRIMINATION
IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
45. Plaintiff incorporates Paragraphs 1 through 44 of this Complaint as if fully alleged herein.
46. In July 1998, GWUH created a policy abolishing all Nursing Assistant positions at GWUH.
47. In July 1998, GWUH imposed a requirement that all Nursing Assistants (a} complete a Request to Transfer form within approximately two weeks; (b) pass three examinations testing their math, reading, and writing skills; (c) attend a ten-week training course; and (d) pass ten examinations during the training course. These requirements have a disparate impact on African-American employees.
48. GWUH's discriminat01y practices described above have denied African-American Nursing Assistants continued employment to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.
49. These employment practices violated Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2.

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LIPPMAN & SEMSKER, PLLC 1120 G Street, NW, Suite 200
Washlngton, D.C. 20005 (202) 824-8100

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
50. Declare that the practices described in this Complaint existed at GWUH and that they are unlawful;
51. Issue a permanent injunction prohibiting the Defendant, its officers, agents, employees.and successors, from engaging in the discriminatory employment practices complained of herein;
52. Issue a permanent mandatory injunction requiring that Defendant adopt employment practices in conformity with the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.;
53. Reinstate the Plaintiffs in the positions that they previously held or in substantially identical positions;
54. Award back pay and other job benefits sufficient to make Plaintiffs and the Class whole;
55. Award compensatory and punitive damages appropriate to the proof at trial; 56. Award reasonable attorneys' fees and costs, including expert fees, pursuant to 42 U.S. C. § 2000e and 42 U.S.C. § 1988; and 57. Order such other and further relief as the Court deems just and proper.

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LIPPl\iA!."'J & SEMSKER, PLLC
1120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

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• DEMAND FOR JURY TRIAL
Plaintiffs, by and through their under-signed counsel, herewith demands a trial by jury on all issues.
Respectfully submitted,
Shannon M. Salb, #453197 Richard H. Semsker, #413886 Solaman G. Lippman, #25692 LIPPMAN & SEMSKER, PLLC 1120 G Street, NW Suite 200 Washington, DC 20005 Attorneys for Plaintiff

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LIJ'PMA.N & SEMSKER, PLLC
1120 G Street, NW, Suite 200 Washington, D.C. 20005 (202) 824-8100

 
 Case 1:01-cv-02361-JSG Document 16 Filed 02/20/03 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RENAE MARABLE, et al.,
Plaintiffs,
v.
DISTRICT HOSPITAL PARTNERS, L.P.,
Defendant.

Civil Action 01cv02361 (HHK)

MEMORANDUM OPINION AND ORDER Plaintiffs are six African-American persons, who were employed by George Washington University Hospital ("GWUH") as Nursing Assistants, prior to their termination on November 15, 1998.1 Plaintiffs were terminated when GWUH eliminated its Nursing Assistant position and replaced it with a new position, that of Multi-skilled Technician ("MST"). During this transition, Nursing Assistants were invited to apply to become MSTs, although to actually become MSTs, they had to satisfy a number of requirements. These requirements are challenged here. Plaintiffs bring this action on their own behalf, and on behalf of all similarly situated persons, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. This matter comes before the court on defendant's motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(6). Defendant claims that this action should be dismissed
1 The District Hospital Partners, L.P. does business as George Washington University Hospital ("GWUH").

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because: (1) plaintiffs fail to properly state a disparate impact claim under Title VII, and (2) plaintiffs have not appropriately exhausted their administrative remedies.2 Upon consideration of defendant's motion, plaintiffs' opposition thereto, and the record of this case, the court concludes that defendant's motion must be granted in part and denied in part.
I. BACKGROUND Prior to November 1998, GWUH employed approximately 125 Nursing Assistants, approximately 95% of whom were African-American.3 These Nursing Assistants performed basic nursing skills, such as bathing patients, recording patient intakes and outputs, and taking vital signs, all under the direct supervision of registered nurses. Citing financial difficulties, GWUH decided to abolish the Nursing Assistant position in 1998. GWUH notified plaintiffs of this decision on July 24th of that year. At that time, plaintiffs were also notified that GWUH was creating a new job category, that of Multi-skilled Technician. Plaintiffs were told they could become MSTs, provided they met the following four requirements. First, applicants had to complete a "Request to Transfer" form within two weeks.
2 Pursuant to Fed. R. Civ. P. 12(f), defendant also asks this court to strike plaintiffs' request for a jury trial and for compensatory and punitive damages because such relief is limited to circumstances when plaintiffs allege intentional discrimination. See 42 U.S.C. § 1981a. Plaintiffs have since withdrawn this request, recognizing that such relief is not provided when a plaintiff makes only a disparate impact claim. See Pls.' Opp. at 1 n. 1. In addition, defendant's motion to dismiss further provides that plaintiffs' complaint must be dismissed as untimely. Defendant has since withdrawn that portion of its motion, recognizing that plaintiffs' complaint was, in fact, filed within the applicable limitations period. See Def.'s Partial Withdrawal of Mot. to Dismiss.
3 Plaintiffs claim that approximately 95% of the Nursing Assistants were AfricanAmerican, and virtually all of the remaining 5% were minorities. Plaintiffs contend that "only a couple of Nursing Assistants were Caucasian." Am. Compl. ¶ 27.
2

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Second, each applicant had to pass three written examinations, which tested the applicant's mathematical competence and reading and writing ability. Third, each was required to attend a MST training course, consisting of ten one-hour classes, and, as a fourth requirement, each class period ended with a written test, which applicants were required to take and pass. Am. Compl. ¶ 28.
Few Nursing Assistants were able to successfully clear these hurdles. According to plaintiffs, almost all of the Nursing Assistants took the math, reading, and writing tests, yet only one-quarter of the Assistants passed. Id. ¶ 32. Moreover, of those who passed these initial screening tests, only three-quarters passed all ten weekly examinations. Id. ¶ 34. The experiences of the six plaintiffs presently before this court appear to be somewhat representative. That is, plaintiff Carolyn Murphy declined to take the three screening tests because she was afraid she would not pass and she deemed the tests to be unfair. Plaintiffs Nancy Price, Kathleen McDonald, and Jeanette Adams, took, but did not pass, the three screening tests. Plaintiffs Renae Marable and Zahiyyah Muhammad passed the screening tests and attended the training course, but failed examinations administered thereunder.
Plaintiffs challenge the requirements, not just because they imposed a formidable hurdle. Rather, plaintiffs claim the requirements were arbitrary in nature and application and "had a disparate impact on African-American candidates." Am. Compl. ¶ 31. The requirements were arbitrary in nature, according to plaintiffs, because they were unrelated to MST's actual job responsibilities. Moreover, the requirements were reportedly arbitrary in application because: (1) those who had not previously been Nursing Assistants at GWUH were not forced to satisfy these conditions, and (2) GWUH has continued to employ many of the previously-employed full
3

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time Nursing Assistants who failed to qualify as MSTs as part-time Nursing Assistants, a position without fringe benefits or fixed hours.
II. ANALYSIS A. Legal Standard for a Motion to Dismiss
This matter comes before the court on defendant's motion to dismiss. "A motion to dismiss should not be granted 'unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief.'" Beverly Enterprises, Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999) (quoting Kowal v. MCI Communications, Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). To that end, the complaint must be construed liberally in the plaintiffs' favor and plaintiffs should receive the benefit of all favorable inferences that can be drawn from the alleged facts. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334-35 (D.C. Cir. 1985).4
In this motion to dismiss, defendant claims that plaintiffs (1) fail to state a cognizable Title VII disparate impact claim, and (2) failed to exhaust their administrative remedies. To these claims the court now turns.
4 In reaching its decision, the court considered plaintiffs' EEOC charge, which was specifically referenced in, and central to, plaintiffs' complaint as well as the record of the EEOC investigation which ensued. The court's consideration of such material does not convert defendant's motion into one for summary judgment. See EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997); Baker v. Henderson, 150 F. Supp. 2d 13, 15 (D.D.C. 2001).
4

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B. Disparate Impact Claim Defendant first contends that plaintiffs' complaint should be dismissed because plaintiffs
fail to state a disparate impact claim. Defendant argues that plaintiffs' allegations fail because the complaint only states, in a conclusory manner, that plaintiffs suffered disparate impact discrimination without alleging sufficient facts to support the conclusion that African-Americans fared worse than did non-African-Americans during GMUH's staff reorganization. Such conclusory statements, according to defendant, are insufficient as a matter of law.
Plaintiffs counter by arguing that the complaint provides all that is necessary because it states: "The Defendant's own validation study established that some of this testing had a disparate impact on African-American candidates." Am. Compl. ¶ 31. The complaint further provides that the tests and other requirements were neither job related nor consistent with business necessity. Id. ¶¶ 30, 35. Plaintiffs state that under Federal Rule of Civil Procedure 8(a), no more is required.
In order to make out a prima facie case of disparate impact discrimination, defendant is correct that plaintiffs must eventually show that defendant's policies or practices have resulted in decreased minority employment. See Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984) (plaintiffs must show a "disparity between the minority and majority groups in an employer's workforce"); EEOC v. Joe's Stone Crab. Inc., 220 F.3d 1263, 1274 (11th Cir. 2000) (providing that, in order to make a disparate impact claim, the plaintiff must be able to point to a statistical disparity between the proportion of a statutorily protected group in the relevant labor pool and the proportion of that group hired). Defendant is again correct in noting that plaintiffs' complaint does not clearly allege that minorities fared worse than did non-minorities during GMUH's staff
5

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reorganization. Defendant is mistaken, however, in asserting that plaintiffs' complaint must be dismissed because it lacks such specific contentions.
This Circuit has clearly established that while a plaintiff ultimately has the burden of proving the elements of prima facie employment discrimination, she "need not set forth the elements of a prima facie case at the initial pleading stage." Sparrow v. United Air Lines, 216 F.3d 1111, 1113 (D.C. Cir. 2000). Accord Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080, 1086 (D.C. Cir.1998) ("[A] plaintiff need not allege all the facts necessary to prove its claim."); Atchinson v. Dist. of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996) ("A complaint . . . need not allege all that a plaintiff must eventually prove."); JohnsonTanner v. First Cash Fin. Services, 2003 WL 99431 (D.D.C. Jan. 2, 2003) (quoting Glymph v. Dist. of Columbia, 180 F. Supp. 2d 111, 114 (D.D.C. 2001)); Woodruff v. DiMario, 197 F.R.D. 191, 193-94 (D.D.C. 2000).
As plaintiffs recognize, Fed. R. Civ. P. 8(a)(2) requires only that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Supreme Court recently affirmed, under this Rule, a plaintiff need not plead facts beyond those which would "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema, 534 U.S. 506, 513 (2002) (quoting Conley, 355 U.S. at 47). See generally Nat'l Fair Housing Alliance, Inc. v. Prudential, 208 F. Supp. 2d 46 (D.D.C. 2002).
Plaintiffs have cleared this low threshold. Racial discrimination, disparate impact claims are, of course, claims "upon which relief can be granted," and plaintiffs' statement that defendant's four requirements "have had a disparate impact on African-American employees of
6

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GWUH" gives defendant ample notice of plaintiffs' claim. Am. Compl. ¶ 40; see Woodruff, 197 F.R.D. at 195. Plaintiffs' complaint, therefore, states a cognizable claim. Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is accordingly denied. See generally Saunders v. Caldera, 193 F. Supp. 2d 1, 4 (D.D.C. 2001) (finding that the plaintiff's complaint which merely provided that the plaintiff was denied a promotion as a result of the Army's equal opportunity policy "squarely" stated a cognizable claim). C. EEOC Exhaustion
Defendant next claims that plaintiffs' claim must be dismissed because plaintiffs have failed to exhaust their administrative remedies.
Plaintiffs' complaint provides that "Plaintiff Marable filed a timely charge of discrimination on her own behalf and on behalf of all remaining named Plaintiffs with the United States Equal Employment Opportunity Commission on or about April 2, 1999, complaining of the acts which give rise to this lawsuit." Am. Compl. ¶ 6. Defendant contests this assertion mightily, claiming that plaintiffs' EEOC charge failed in two respects. First, defendant contends that plaintiffs did not adequately exhaust their administrative remedies with respect to the three initial screening tests (the math, reading, and writing tests). Plaintiffs fell short, according to defendant, because "Ms. Marable is the only Plaintiff to have filed a charge with the Equal Employment Opportunity Commission" and since she passed those three screening tests, she had no ability to complain about them. Def.'s Mot. to Dismiss at 2. Second, defendant argues that while plaintiffs' EEOC charge may have complained of the three initial screening tests–that was the extent of it. Thus, according to defendant, plaintiffs may not challenge the other three hurdles the Nursing Assistants had to clear, (i.e., defendant's requirements that Nursing
7

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Assistants: (1) file a "Request to Transfer" form within two weeks; (2) attend training courses; and (3) pass examinations administered thereunder), because these requirements, as beyond the scope of the filed EEOC charge, were never properly exhausted.
1. Legal Framework Before delving into these particular matters, a brief word on Title VII's administrative framework is warranted. Title VII requires that a person complaining of a violation file an administrative charge with the EEOC. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973); Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Once the charge is filed, a person cannot file suit until the EEOC has had an opportunity to review the claim. Park, 71 F.3d at 907. Moreover, if a person does opt to file suit after completing the EEOC charging process, the plaintiff's claims are limited to those claims that were asserted in the administrative complaint or that are "like or reasonably related to the allegations of the charge and [which grow] out of such allegations." Id. (internal citation omitted). This requirement advances three salutary interests. The requirement: (1) gives the EEOC an opportunity to investigate the charge; (2) puts the charged party on notice; and (3) narrows the issues for prompt adjudication. See id.; Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n. 325 (D.C. Cir. 1976); Christopher v. Billington, 43 F. Supp. 2d 39, 47 (D.D.C. 1999). In this case, defendant claims that plaintiffs failed to exhaust their administrative remedies. "In Title VII actions, failure to exhaust administrative remedies is an affirmative defense in the nature of statute of limitations," and so defendant has the burden of showing the insufficiency of plaintiffs' EEOC charge. Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997); accord Downey v. Runyon, 160 F.3d 139, 146 (2d Cir. 1998); Bowden v. United States, 106 F.3d
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433, 437 (D.C. Cir. 1997); Armstrong v. Reno, 172 F. Supp. 2d 11, 20-21 (D.D.C. 2001). 2. Charge was Filed on Behalf of All Plaintiffs. Defendant's first argument rests on its factual assertion that plaintiff "Marable is the only
Plaintiff to have filed a charge with the Equal Employment Opportunity Commission." Def.'s Mot. to Dismiss at 2. If that statement is accepted, then consequences may flow. Plaintiffs contest this assertion, however. Plaintiffs claim that 42 U.S.C. § 2000e-5(b) allows filing "on behalf of a person claiming to be aggrieved" and contend that Marable, in fact, quite clearly filed the EEOC charge on her own behalf as well as on behalf of others.
First, it is quite clear that an EEOC charge may be filed on behalf of another. See 42 U.S.C. § 2000e-5(b) (allowing filing "on behalf of a person claiming to be aggrieved"); 29 C.F.R. § 1601.7 (establishing procedures whereby a claimant may file charges on another's behalf). See also Eichman v. Indiana St. Univ. Bd. of Trustees, 597 F.2d 1104-1107-08 (7th Cir. 1979) (finding that an EEOC charge that briefly mentioned the plaintiff as a person aggrieved by the defendant's actions satisfied the charge requirement); Antonopulos v. Aerojet-General Corp., 295 F. Supp. 1390, 1393 (E.D. Cal. 1968) ("where . . . someone has filed a charge with the EEOC containing the names of other persons similarly aggrieved, it is not necessary that those persons named file separate charges as a prerequisite to bringing a civil suit").
After finding that a charge may legally be filed on behalf of others, the court must determine whether the instant EEOC charge was, in fact, so filed. First, the court must determine whether plaintiffs complied with the applicable regulation concerning representative filing, and second whether the charge was clear enough, on its face, that it was being filed on behalf of Marable as well as others.
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Turning to the first question–whether plaintiffs complied with the applicable
regulation–the regulation at issue, 29 C.F.R. § 1601.7(a), states in pertinent part:
A charge that any person has engaged in or is engaging in an unlawful employment practice within the meaning of Title VII . . . may be made by or on behalf of any person claiming to be aggrieved. A charge on behalf of a person claiming to be aggrieved may be made by any person, agency, or organization. The written charge need not identify by name the person on whose behalf it is made. The person making the charge, however, must provide the Commission with the name, address and telephone of the person on whose behalf the charge is made. During the Commission investigation, Commission personnel shall verify the authorization of such charge by the person on whose behalf the charge is made. Any such person may request that the Commission shall keep his or her identity confidential . . . .
29 C.F.R. § 1601.7(a).
In support of its argument that plaintiffs failed to comply with this regulation, defendant
first contends that plaintiffs failed to verify the charge.5 Def.'s Reply at 12. That is, according to
defendant, "[t]here is no allegation or evidence in this case that any plaintiff other than Marable
ever verified to the EEOC her desire to be treated as a charging party, or even authorized
Marable to file charges on her behalf." Id.
Defendant's verification argument is premature. As the very case defendant cites in
support of this proposition makes plain, the resolution of such a question requires fact-finding,
5 There is a factual dispute regarding whether a list of persons was actually attached to the EEOC charge, as required by 29 C.F.R. § 1601.7(a). Plaintiffs claim that such a list (which included twenty-one names, including the names of all plaintiffs to this action) was appended. Plaintiffs further provide that "EEOC records and plaintiffs' counsel's records clearly indicate that the list of other charging parties was attached to the Charge." Pls.' Opp. at 9 n. 4. Defendant disputes this fact and claims that no list of persons was ever included, and even that "undersigned counsel was expressly told by an EEOC agent in 1999 that no list of signatures was included with the Charge." Def.'s Reply at 11-12. Defendant concedes, however, that "for purposes of this motion, the Court must assume that the list was appended to Marable's charge when filed with the EEOC." Id. at 12.
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the time for which has not yet come. See Alfred v. Centex Corp., 2002 WL 226340, * 6 (N.D. Tex. Feb. 13, 2002) (citing extensive deposition testimony in support of the court's eventual conclusion that the EEOC charge was filed with the third parties' authorization).
In further support of its argument that the charge was procedurally inadequate, defendant next highlights the "dispositive fact" that the EEOC treated Marable's charge as if it were filed on her behalf only. Def.'s Reply at 12. Defendant provides that: (1) in the "notice of charge," the box intended to signal that a charge is filed "on behalf of another," was left blank, and (2) at the end of its investigation, the EEOC sent a right to sue letter to Marable only. Defendant argues that the EEOC's "failure to issue [a right to sue] letter to any Plaintiff other than Marable is conclusive proof that the EEOC deemed the charge to be filed on Marable's behalf only." Def.'s Reply at 13.
While the above facts are somewhat persuasive, they are insufficient to satisfy defendant's burden of proof regarding plaintiffs' failure to exhaust. Here again, the court relies on Alfred v. Centex Corp. In Alfred, the question was whether six plaintiffs satisfied the exhaustion requirement–whether they were included in the charge filed by plaintiff Bynum on their behalf. Defendant argued they were not, relying on the fact that "when the EEOC ultimately issued a notice of right to sue, it did not draft it as a proper third-party notice and did not forward it, as EEOC regulations require, to the aggrieved parties, but only to Bynum and her counsel." Alfred, at *3. The court did not find this fact determinative, however. Relying, in part, on the fact that the six plaintiffs, in their affidavits, noted that they were made aware of the notice and understood its import, the court overlooked this procedural error and denied the defendant's motion for summary judgment as to this claim. Id., at *7. Here, given the heightened motion to
11

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dismiss standard, the court finds this failure similarly non-determinative.6 Defendant has not demonstrated that plaintiffs' charge was procedurally flawed in violation of 29 C.F.R. § 1601.7(a).
After determining that the charge was procedurally adequate, the court must determine whether the charge provided defendant with adequate notice that it was filed on behalf of Marable as well as others. The charge provided:
Charges are herewith filed by Ms. Renae Marable . . . on her own behalf and on behalf of the attached list of persons who were also employed as Assistant Nurses and subjected to the same acts of a [sic] discriminatory discharge and have authorized Ms. Marable to file charges on their behalf. Def.'s Ex. A. ¶ 4. The charge went on to provide: "Renae Marable also files these charges on behalf of all other Assistant Nurses who were similarly situated and subjected to the same discriminatory discharge." Id. ¶ 5. The charge continued: "The class of employees involved consists of all Assistant Nurses who were unlawfully terminated on or about November 15, 1998 . . . . Id. ¶ 6. In determining whether the charge is sufficient, the relevant inquiry is whether the charge provides adequate notice of the fact that it was filed on behalf of Marable and others. Cf. President v. Vance, 627 F.2d 353, 361 (D.C. Cir.1980); Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 727-28 (D.C. Cir. 1978); Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 203 (D.D.C. 2002) ("'adequacy of notice is [at] the core of Title VII's administrative exhaustion
6 The court notes that the possibility exists that, assuming the EEOC treated the charge as an individual charge, it did so out of error. If so, "courts have affirmed the principle that errors committed by the EEOC to the detriment of complainants bringing EEOC charges cannot, as a matter of equity, be allowed to deny the complainants relief under Title VII." Alfred, at * 5; accord Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1138 (5th Cir. 1971).
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Case 1:01-cv-02361-JSG Document 16 Filed 02/20/03 Page 13 of 17
requirements'") (quoting Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (in turn citing Loe v. Heckler, 768 F.2d 409, 417-18 (D.C. Cir. 1985)); Colantuoni v. Macomber, 807 F. Supp. 835, 838 (D.D.C. 1992). In this case, after giving plaintiffs the benefit of all favorable inferences, as the court must under Rule 12(b)(6), the court finds that defendant was on notice that the charge was filed by Marable for and on behalf of herself and others.7
3. The EEOC Charge Properly Challenged the Entirety of Defendant's Conduct. Defendant next claims that plaintiffs failed to exhaust because the EEOC charge only complains of one narrow requirement: the initial math, reading, and writing screening tests. Plaintiffs' limited EEOC charge, according to defendants, cannot serve as the basis for this broader judicial action. As stated previously, Title VII actions are "limited in scope to claims that are 'like or reasonably related to the allegations of the charge and growing out of such allegations.'" Park, 71 F.3d at 907 (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)); accord Mayfield v. Meese, 669 F. Supp. 1123, 1127 (D.D.C. 1987). That is, a plaintiff's complaint may, in some respects, span more broadly than her administrative charge, but her claims must at least
7 Plaintiffs claim, alternatively, that even if the charge is interpreted to have been filed only on behalf of Marable, the other plaintiffs' claims are similar enough that the other plaintiffs should receive the benefit of the single file rule. See generally Foster v. Gueory, 655 F.2d 1319, 1322-23 (D.C. Cir. 1981) (discussing the single file rule) (citing Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)); Mayfield, 669 F. Supp. at 1132. Under the single-filing rule, "in a multiple-plaintiff, non-class action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiff's individual claim, then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement." Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1011 (11th Cir. 1982) (internal citations and quotations omitted). Because the court finds that the charge was, in fact, filed on behalf of all six plaintiffs, the court need not, at this time, consider whether plaintiffs have satisfied the requirements to receive the benefit of the single file rule.
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arise from "the administrative investigation that can reasonably be expected to follow the charge
of discrimination." Park, 71 F.3d at 907 (quoting Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). Accord Marshall v. Fed. Express Corp., 130 F.3d 1095 (D.C. Cir. 1997).8 The question before this court, then, is whether plaintiffs' charge is sufficiently broad to
form the basis for the present legal action. After careful analysis, the court finds that it is, in
most respects.
In this case, the administrative charge stated that plaintiffs opposed the elimination of the
Assistant Nurse position and its replacement with the MST position and provided that, as a result
of defendant's actions, "the large majority of Assistant Nurses, a protected class of employees,
suffered termination of employment in violation of Title VII." Def.'s Ex. A., ¶ 3. Moreover, the
administrative charge complained of the requirements imposed on those who wished to become
MST's, stating: "To be eligible for continued employment under the new classification the Assistant Nurses were required to pass two separate[ly] administered written test[s]." Id., ¶ 7.9
8 Generally, courts agree that in construing whether a claim was properly raised, the charge filed before the EEOC is to be "liberally construed," Colantuoni v. Macomber, 807 F. Supp. 835, 838 (D.D.C. 1992) (quoting Brown ,777 F.2d at 13). This liberal construction is usually considered appropriate because EEOC charges are often filed by "persons who are unfamiliar with the technicalities of formal pleadings." Tillman v. City of Boaz, 548 F.2d 592, 594 (5th Cir. 1977). In such cases, courts find that "the administrative charge requirement should not be construed to place a heavy technical burden on 'individuals untrained in negotiating procedural labyrinths.'" Park, 71 F.3d at 907 (quoting Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985)). Some courts have held, however, that when plaintiffs are assisted by counsel in the filing stage, as these plaintiffs were, the EEOC charge need not be given such a liberal construction. See Ang v. Proctor & Gamble Co., 932 F.2d 540, 546 (6th Cir. 1991); Blalock v. Dale County Bd. of Educ., 84 F. Supp. 2d 1291; 1302 (M.D. Ala. 1999); Hawley v. Dresser Indus., Inc., 737 F. Supp. 445, 452 n. 3 (S.D. Ohio 1990). The D.C. Circuit has not yet expressed its view.
9 It is somewhat unclear whether plaintiffs are challenging the written math, reading, and writing tests (as one entity) and also the ten written examinations administered at the conclusion
14

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The charge provided that the tests, which a "large majority of the Assistant Nurses" did not pass, were "discriminatory," not job related, and unsupported by "business necessity." Id., ¶¶ 3, 6, 7.
While defendant is correct that plaintiffs' charge fails to discuss separately each of the four requirements challenged in this action, the court finds that, with one exception, plaintiffs' allegations before this court are similar enough to those in their EEOC charge that they could reasonably grow out of an investigation therefrom. In both the charge and the instant complaint, plaintiffs state a disparate impact, racial discrimination claim, challenging defendant's conduct during a narrow window of time: from November 1998 through April 1999. Moreover, in both the charge and complaint, plaintiffs challenge defendant's decision to terminate all Nursing Assistants as well as the testing requirements defendant imposed on those who wished to transition from the eliminated Nursing Assistant position to the new MST position. Thus, it appears that plaintiffs' charge adequately challenged the math, reading, and writing tests as well as the requirement that plaintiffs attend ten training courses and pass examinations administered in connection therewith.
In this case, moreover, the court need not merely opine as to whether plaintiffs' instant claims would be encompassed by an EEOC investigation reasonably following the charge. In this case, the EEOC actually conducted an investigation. The course of this investigation, therefore, provides useful evidence of how plaintiffs' administrative charge was reasonably understood. See EEOC v. Reichhold Chemicals Inc., 700 F. Supp. 524, 526 (N.D. Fla. 1988) (providing that, while interpreting a charge, a court may look to the actual investigation that
of each training class (as one entity), constituting these "two tests." Alternatively, plaintiffs may be inaccurately referring to the math, writing, and reading tests.
15

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ensued).10 The EEOC's investigation into plaintiffs' charge focused on, not just the three math,
reading, and writing tests, but also the ten-week training program and the tests offered thereunder, thus recognizing that the charge encompassed these aspects of defendant's conduct.11
The EEOC's investigation thus confirms the court's initial determination that defendant's
screening tests, training course, and examinations thereunder, were all adequately challenged by
plaintiffs' EEOC charge.
The court does not find, however, even under the lenient motion to dismiss standard, that
plaintiffs adequately exhausted their claim with respect to the requirement that Nursing
Assistants submit a "Request to Transfer" form within two weeks. This requirement, which is
somewhat analytically distinct from the other three, was neither referred to in the administrative
charge, nor hinted at in the course of the ensuing investigation. Defendant has therefore shown
that plaintiffs have failed to exhaust their administrative remedy with respect to this claim.
10 Defendant argues that the court should not look to the scope of the EEOC's investigation because "'it is not the scope of the actual investigation pursued that determines what complaint may be filed, but what EEOC investigation could reasonably be expected to grow from the original complaint.'" Def.'s Reply at 5 (quoting Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 128 (7th Cir. 1989)). This court's approach is not in serious tension with Schnellbaecher, however, because Schnellbaecher recognizes that "the investigation may help define the scope of the charge." Schnellbaecher, 997 F.2d at 127. The court here is merely recognizing that what was done by the EEOC is persuasive evidence of what was reasonably done by that body.
11 As an aside, the court reiterates that "'adequacy of notice is [at] the core of Title VII's administrative exhaustion requirements.'" Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002) (quoting Brown, 777 F.2d at 14) (in turn citing Loe, 768 F.2d at 417-18). Here, the charge's adequacy is, in part, exemplified by the fact that, in the course of the EEOC investigation, defendant made statements that demonstrated its recognition that plaintiffs were challenging its entire process of replacing Nursing Assistants with MSTs–not just the isolated math, reading, and writing examinations. See Pls.' Ex. 1 at 96 et seq. This helps to show that defendant was on adequate notice regarding the scope of plaintiffs' charge.
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III. CONCLUSION AND ORDER For the foregoing reasons, the court concludes that defendant's motion to dismiss must be GRANTED in part and DENIED in part. All elements of plaintiffs' complaint survive except plaintiffs' challenge to the requirement that Nursing Assistants file a "Request to Transfer" form within two weeks.

Dated: February 20, 2003

_______________________ Henry H. Kennedy, Jr. United States District Judge

17

 
 Case 1:01-cv-02361-JSG Document 65 Filed 05/29/07 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RENAE MARABLE, et al.,
Plaintiffs,
v.
DISTRICT HOSPITAL PARTNERS, L.P.,
Defendant.

Civil Action 01-cv-02361 (HHK)

MEMORANDUM OPINION AND ORDER Plaintiffs bring this action against George Washington University Hospital (“GWUH”),1 alleging that tests it employs to screen applicants for Multi-skilled Technician (“MST”) positions are racially discriminatory in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. In 1998, GWUH eliminated the position of Nursing Assistant and replaced it with a new MST position. “Internal” applicants, those who had been Nursing Assistants, and external applicants for these positions were required to pass certain examinations in order to be considered for the position. Plaintiffs, five Black former Nursing Assistants, allegedly were denied employment as MSTs as a result of their performance on the tests. Plaintiffs challenge the use of the tests on their own behalf and seek to do so as well on behalf of a putative class of Black external applicants for the MST positions who were not hired because they did not pass the tests.

1 The District Hospital Partners, L.P. does business as George Washington University Hospital.

Case 1:01-cv-02361-JSG Document 65 Filed 05/29/07 Page 2 of 8

Before the court is plaintiffs’ motion to permit two unsuccessful Black external applicants, Monica Brooks and Tracee Taylor, who failed the tests in 1999 and 2002, respectively, to intervene [#57] in this action.2 Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that plaintiffs’ motion should be granted.
I. BACKGROUND A. Factual Background
When GWUH eliminated its Nursing Assistant position and replaced it with the MST position, it established two hiring procedures for the new position: one for displaced Nursing Assistants and a second for external applicants. Former Nursing Assistants who wished to become MSTs were required to first pass three screening examinations on math, reading comprehension, and writing in order to be admitted to the MST training program. According to GWUH, the tests were administered to the former Nursing Assistants to determine whether they would be successful in the MST training program. Former Nursing Assistants were permitted to take each of these three screening exams twice and were offered free tutoring if they failed the first time. Former Nursing Assistants who passed the tests were admitted to a training program, completion of which required passing ten more examinations to obtain employment as a MST.
External candidates were screened for education and experience, and those selected also were administered the tests. According to GWUH, the tests were administered to the external applicants to determine whether they would be successful in the MST position. External

2

Plaintiffs’ motion was captioned as a “Motion for Leave to File an Amended

Complaint.” Plaintiffs accept that their characterization of the motion was inappropriate and that

the motion is properly considered as a motion to intervene. See Pls.’ Reply at 1 n.1. Plaintiffs

also indicate that the former Nursing Assistants intend to “pursue their claims through individual

suit, even if joined together in a single action.” Id. at 2.

2

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applicants were only provided one opportunity to pass each exam and GWUH did not offer any assistance in preparing for the exams. The external applicants who passed the exams were evaluated against the other external applicants before consideration was given to offering them MST positions. Plaintiffs contend generally that the tests had an unlawful discriminatory impact on Black applicants. B. Procedural Background
In their second amended complaint, plaintiffs sought class certification on behalf of former Black Nursing Assistants and external applicants, but they did not include any external applicants among the named class representatives. On August 31, 2006, this court denied plaintiffs’ motion for class certification on the grounds that the distinct purposes of the tests with regard to Nursing Assistants and external applicants indicate that the claims of the two groups lacked commonality of questions of law or fact as required by Rule 23(a) of the Federal Rules of Civil Procedure. Furthermore, the court concluded that it could not separate the groups into subclasses because: (1) the named representatives did not include any external applicants and their claims were not typical of external applicants; (2) there were not a sufficient number of Black former Nursing Assistants to qualify as a sub-class without the external applicants; and (3) the Black external applicants could not qualify as a sub-class without a named representative. Plaintiffs now seek to add two Black external applicants in order to cure these deficiencies.
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II. ANALYSIS GWUH opposes plaintiffs’ motion on the grounds that (1) the motion is futile because it will not cure the deficiencies in plaintiffs’ class claims; (2) the claims of the external applicants are time-barred; and (3) the external applicants have not exhausted their administrative remedies. A. Futility GWUH contends that plaintiffs’ motion is futile because the addition of the two external applicants for MST positions would not address the court’s determination that plaintiffs had not demonstrated that their class claims fulfilled the commonality and typicality requirements of Rule 23(a). GWUH is correct that the addition of external applicants would not change the fact, or bear upon this court’s determination, that the tests were used for two different purposes insofar as the applications of former Nursing Assistants and external applicants are concerned. Perhaps because they recognize the problem this presents for their attempt to gain class certification for a class that would include former Nursing Assistants and external applicants, plaintiffs explain in their reply that they no longer seek class certification for former Nursing Assistant applicants.3 Given this understanding, the addition of external applicants Monica Brooks and Tracee Taylor would appear to adequately lay the groundwork for seeking certification of the external applicants as a separate class. The tests were used for the same purpose regarding all external applicants — to determine their likelihood of success in the MST position — and the two named representatives appear to have claims typical of a class comprised solely of such applicants. The

3

GWUH must be excused from failing to recognize this, of course, because

plaintiffs did not make this explicit until filing their reply. See Pls.’ Reply at 1–2.

4

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claims of such a class would also appear to involve common questions of law or fact. Thus, the court rejects GWUH contention that plaintiffs’ motion is futile. B. Exhaustion of Administrative Remedies
GWUH next contends that the external applicants who plaintiffs seek to add to this suit have failed to exhaust their administrative remedies, which is a prerequisite to maintaining a Title VII suit in federal court. Plaintiffs contend, however, that they may rely on plaintiff Marable’s EEOC charge under the “single-filing rule” applicable to class action suits under Title VII.
It is well established that, “each individual plaintiff in a Title VII class action suit need not individually file an EEOC complaint, but that it is sufficient if at least one member of the plaintiff class has met the filing prerequisite.” Foster v. Gueory, 655 F.2d 1319, 1321 (D.C. Cir. 1981) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975)). Further, a federal complaint need not be a mirror image of the EEOC charge, but the Title VII claims are “limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (internal quotation marks and citations omitted). Plaintiffs in a class-action suit may rely on an EEOC charge if “(1) there is a reasonable relationship between the allegations in the EEO charge and the civil complaint; and (2) the civil claim can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.” Contreras v. Ridge, 305 F. Supp. 2d 126, 132 (D.D.C. 2004) (internal quotation marks and citations omitted).
Here, these requirements have been satisfied. In her EEOC charge, Marable asserted that the tests were discriminatory against Blacks on behalf of herself and all Nursing Assistants; she
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did not include external applicants because she was apparently of the mistaken belief that external applicants were not required to take the test. Def.’s Opp’n, Ex. 4 at 2 (Marable EEOC Charge) (“Persons hired from the outside to fill the vacancies were not required to take either of the written tests.”). However, the EEOC investigation ultimately encompassed all of those who took the test — including external applicants — and GWUH was well aware that the investigation examined any discrimination against external applicants. Indeed, GWUH conducted a validation study concerning the impact of the exam on both internal and external applicants, which it submitted to the EEOC. Pls.’ Mot. to Cert. Ex. 2 at 2 (Right to Sue Letter, Aug. 10, 2001) (discussing validation study). In these circumstances, Marable’s allegations in her initial EEOC charge bore a “reasonable relationship” to the complaint made here by the external applicants and their claim here could “reasonably be expected” to have grown out of the investigation of Marable’s EEOC charge. Thus, the exhaustion requirement is not an impediment to the attempt to seek redress for the external applicants in this action. C. Timeliness of External Applicants’ Claims
GWUH finally contends that the external applicants’ claims are time-barred because the normal provision tolling the 90-day statute of limitations during the pendency of a class action is not applicable. Plaintiffs counter that they are asserting the same claim as plaintiffs in the initial complaint, which was timely, and thus they are entitled to tolling.
Ordinarily, “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974) (permitting intervention where class certification was denied for lack of
6

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numerosity). Once the statute of limitations has been tolled, “it remains tolled for all members of the putative class until class certification is denied,” at which point “class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983).
There is no merit to GWUH’s contention that this doctrine protects only individual claims, not class claims. The cases that GWUH cites for support refer to the prohibition against filing “new but repetitive complaints.” Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987); see also Salazar-Calderon v. Presidio Valley Farmers Ass’n, 765 F.2d 1334, 1351 (5th Cir. 1985) (concluding that plaintiffs may not “piggyback one class action onto another and thus toll the statute of limitations indefinitely”). These cases stand for the proposition that plaintiffs bringing a new class action complaint are not entitled to tolling, but they have no application to intervention in an existing class action by plaintiffs covered by the original putative class claims. Intervention to substitute a new named representative does not start a new class action, and such intervenors are entitled to tolling of the statute of limitations from the filing of the first complaint. See Shields v. Washington Bancorp., 1992 WL 88004, *2 (D.D.C. Apr. 7, 1992) (permitting intervention where named representative was initially rejected); but see Fleck v. Cablevision VII, Inc., 807 F. Supp. 824, 825–27 (D.D.C. 1992) (concluding that new proposed class representative is not entitled to tolling). As the Third Circuit concluded in similar circumstances, “class claims of intervening class members are tolled if a district court declines to certify a class for reasons unrelated to the appropriateness of the substantive claims for certification.” McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d 380, 389 (3d Cir. 2002).
Because the intervenors here were part of the initial putative class and their claims were
7

Case 1:01-cv-02361-JSG Document 65 Filed 05/29/07 Page 8 of 8 not rejected on substantive grounds, they are entitled to tolling of the statute of limitations from the date the complaint was filed to the date the class certification was rejected. The external applicants sought to intervene on the day that class certification was denied.4 As they were entitled to tolling during the pendency of the class certification issue, their motion to intervene was timely and is not barred by the statute of limitations.
III. CONCLUSION For the foregoing reasons, it is this 29th day of May, 2007 hereby ORDERED that the plaintiffs’ motion to amend the complaint and to intervene [#57] is GRANTED.
Henry H. Kennedy, Jr. United States District Judge
4 As Marable’s complaint was filed on the last day of the 90-day statute of limitations period, the motion to intervene was due on the date that certification was denied.
8

 
 Case 1:01-cv-02361-JSG Document 56 Filed 08/31/06 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RENAE MARABLE, et al.,
Plaintiffs,
v.
DISTRICT HOSPITAL PARTNERS, L.P.,
Defendant.

Civil Action 01-02361 (HHK)

MEMORANDUM OPINION AND ORDER Plaintiffs, six Black former employees of George Washington University Hospital (“GWUH”), bring the instant action as a result of their termination on November 15, 1998.1 Plaintiffs’ employment ended when GWUH eliminated the position previously held by each plaintiff—Nursing Assistant—and replaced it with a new position, Multi-skilled Technician (“MST”). All Nursing Assistants were invited to apply to become MSTs if they satisfied a number of different requirements. Plaintiffs now challenge a specific component of these requirements—a three-part screening test—pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiffs assert these claims on their own behalf as well as on behalf of a putative class of all Black applicants for the MST position that were not hired as a result of their failure to pass GWUH’s screening

1 The District Hospital Partners, L.P. does business as George Washington University Hospital.

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examinations. Before the court is plaintiffs’ motion for class certification (Dkt. #31). Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that plaintiffs’ motion must be denied.
I. BACKGROUND In November 1998, GWUH eliminated the Nursing Assistant position and replaced it with the MST position. According to GWUH, this reorganization was precipitated by a desire to “develop and implement new patient care models that improve[d] operational efficiency and patient satisfaction.” Pls.’ Opp’n, Ex. B ¶ 3 (Aff. of Karen Frazier.) The MST position was designed to have “substantially greater responsibility and higher pay” than that which it replaced; while Nursing Assistants were expected to attend to tasks primarily related to patient transport and “daily living activities,” i.e., patient ambulation, monitoring vital signs, making beds, and bathing patients, GWUH envisioned that the MSTs’ duties would encompass “highly technical functions related to procedures and treatments, and diagnostic testing and specimen collection.” Id. ¶ 5–6. GWUH established two hiring procedures for the newly created MST position: one for displaced Nursing Assistants, and to the extent that GWUH’s hiring needs could not by satisfied by this pool of internal candidates, a second for external applicants. Former Nursing Assistants who wished to become MSTs were required to first pass a battery of three screening tests: one assessing arithmetic skills, another reading comprehension, and the final writing ability.2 The former Nursing Assistants were permitted to take each of these
2 The parties dispute whether the three screening exams should be analyzed individually or as a single unit. Because the distinction does not affect the resolution of the instant motion, the court need not address the question. Nevertheless, for the sake of clarity the court notes that
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three screening exams twice. In addition, those former employees that initially failed were offered free tutoring to prepare them to retake the exam. Former Nursing Assistants that passed each of these three screening tests were then admitted into a training course that lasted ten weeks and was comprised of ten distinct units. These units ranged in length from one day to several days, each concluding with a written examination. As with the screening exams, the participants in the training program were permitted to take each exam twice. The former Nursing Assistants that passed each of these ten examinations were offered employment as a MST.3
External candidates were subject to a different, more streamlined, hiring process. After soliciting applications for those positions not filled by former Nursing Assistants, GWUH selected candidates that it believed had the requisite education and experience and then permitted them to take the three screening tests administered to the internal applicants. Unlike the displaced Nursing Assistants, external applicants were only provided one opportunity to pass each exam and GWUH did not offer any assistance in preparing for the exams. The external applicants that passed the exams were not guaranteed to receive a position nor where they admitted into a training program. Instead, they were evaluated against the other external applicants that had passed the exam.
Plaintiffs, all former Nursing Assistants, challenge GWUH’s use of these screening exams as a selection device. Plaintiffs insist that the examination had a disparate impact on
it will refer to the three screening tests in the plural, but takes no position as to the proper unit of analysis with respect to issues such as the validation of the tests.
3 GWUH offered alternative employment to the Assistants that failed to pass any component of the aforementioned exams. Pls.’ Opp’n, Ex. B ¶ 17 (Aff. of Karen Frazier.)
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Black applicants, and as a result, ask the court for various forms of relief intended to address the alleged discriminatory effect of the examination.
II. ANALYSIS A. Plaintiffs’ Proposed Class
Plaintiffs seek to certify a class of all Black applicants for the MST position at GWUH—including applicants formerly employed as Nursing Assistants by GWUH and external candidates—who were not hired due to their failure to pass the screening tests. This construction of plaintiffs’ class represents a departure from that which is outlined in their complaint. Plaintiffs originally envisioned a much broader class that included “(a) those who failed the reading, writing, and math screening test; (b) those who failed the ten-part training course; and (c) those who refused to take the screening test at all.” Pls.’ Reply at 8; see also Second Am. Compl. ¶¶ 49–50. Following a lengthy discovery period and time to digest the arguments of opposing counsel, plaintiffs have since narrowed the scope of the class that they wish to certify.
As the party moving for class certification, plaintiffs bear the burden of establishing that the requirements for class certification, as set forth in Rule 23 of the Federal Rules of Civil Procedure, have been satisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Plaintiffs, therefore, must show that they satisfy all four prerequisites of Rule 23(a). Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994); In re Vitamins Antitrust Litig., 209 F.R.D. 251, 256 (D.D.C. 2002). These requirements are: (1) that the class is so numerous that joinder of all members is impracticable; (2) that there are questions of law or fact common to the class; (3) that the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) that the representative parties will fairly and adequately protect the interests of the
4

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class. FED. R. CIV. P. 23(a). In addition, plaintiffs must also demonstrate that the class falls within at least one of the three categories set forth in Rule 23(b). A district court exercises broad discretion in deciding whether plaintiffs have carried their burden. Hartman, 19 F.3d at 1471 (citing Bermudez v. U.S. Dep’t of Agric., 490 F.2d 718, 725 (D.C. Cir. 1973)).
The question of class certification is a preliminary question distinct from the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). As the Supreme Court pointed out in Eisen, when “determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Id. at 178 (internal quotation omitted). While courts may not conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action, id. at 177, the court may consider matters beyond the pleadings to ascertain whether the asserted claims or defenses are susceptible to resolution on a class-wide basis. See McCarthy v. Kleindienst, 741 F.2d 1406, 1419 n.8 (D.C. Cir. 1984).
Having set forth the proper analytical framework, the court now turns to its application of Rule 23’s requirements to the case at hand. The court will address first commonality—the most fiercely contested of the certification requirements—given that failure to meet any of Rule 23’s requirements is sufficient to defeat certification.
1. Commonality Rule 23(a)(2) requires that there be questions of fact or law common to the class. FED. R. CIV. P. 23(a)(2). This rule does not require commonality on every fact or on each issue of law. Franklin v. Barry, 909 F. Supp. 21, 30 (D.D.C. 1995); Forbush v. J.C. Penney & Co. Inc., 994 F.2d 1101, 1106 (5th Cir. 1993). Rather, “[t]he commonality test is met when there is at least
5

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one issue, the resolution of which will affect all or a significant number of the putative class members.” Coleman v. Pension Benefit Guar. Corp., 196 F.R.D. 193, 198 (D.D.C. 2000) (internal quotation omitted).
Here, plaintiffs submit that the common issue presented is the validity of GWUH’s requirement that all applicants for the MST position pass the three screening tests.4 Despite the fact that the substance of the screening tests given to the external applicants and the former Nursing Assistants was apparently identical, GWUH argues that “the tests were given as part of two different employment procedures at two different times, and for different reasons.” Def.’s Supp. Br. at 3. GWUH contends that the screening tests were administered to the displaced Nursing Assistants in order to allow GWUH to assess their ability to succeed in the ten-week training program in which they were permitted to enroll after passing the exam. External applicants, however, were asked to take the screening exams to determine whether they “had the minimum proficiency in reading, writing and math required for the job.” Id. at 4. According to GWUH, the purpose of each test was distinct despite the fact that the content was the same.
While at first blush GWUH’s attempt to distinguish the screening tests given to the internal applicants and external applicants might appear to be a post hoc invention to defeat class
4 More specifically, plaintiffs argue that there are at least four common questions uniting the putative class members: (1) “whether the challenged test has a disparate impact on AfricanAmerican test takers; (2) whether the test is a valid predictor of success for the MST position;” (3) “whether there is a less discriminatory selection mechanism that Defendant could have used for filing all MST positions;” and (4) assuming plaintiffs establish defendant’s liability, “there will be the common question of what injunctive relief is needed to change GWUH’s policies with respect to the MST position and to ensure that a non-discriminatory selection process is used in filling future vacancies for MST positions.” Pls.’ Resp. to Def.’s Suppl. Br. at 10.
6

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certification, the court is mindful that the focus of the court’s inquiry is not the merits of the case, but whether this action is suitable for class treatment. Thus, whether or not a single test can effectively perform two functions is not, at this juncture, a concern. Rather, the court’s primary inquiry is whether the alleged dual purposes of the test administered to former Nursing Assistants and external applicants for the MST position undermines the commonality of the issues presented in this case. The court concludes that it does.
Plaintiffs rely on a disparate impact theory. Disparate impact cases are subject to the familiar burden-shifting framework utilized in employment discrimination cases. In a disparate impact case, the burden initially falls to the plaintiff to set forth a prima facie case. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). This “may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group.”5 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 349 (1977). In the next step, the burden shifts to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e2(k)(1)(A)(i); see also Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Finally, assuming the defendant demonstrates business necessity, the plaintiffs are then afforded an opportunity to demonstrate that an alternative employment practice could meet the employer’s legitimate needs without a similar discriminatory effect. See 42 U.S.C. § 2000e-2(k)(1)(A)(ii); Albemarle Paper Co., 422 U.S. at 425.
5 A plaintiff need not prove discriminatory intent but is required to make a showing, typically through statistical evidence, that the challenged practice has a substantially disproportionate impact on the protected class. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988); Arnold v. U.S. Postal Serv., 863 F.2d 994, 996 (D.C. Cir. 1988); Batson v. Powell, 912 F. Supp. 565, 572 (D.D.C. 1996).
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The significance of the different purported functions served by the screening tests relates to these respective burdens. Because, according to GWUH, each test was used for a different purpose, each test must be validated based on a different set of criteria. That is, GWUH must demonstrate that the selection criteria is “job related” to success within the training program, as well as “job related” to successful performance of the responsibilities and duties associated with the MST position. Assuming GWUH fulfills its obligation, plaintiffs will then be required to identify an alternative, but less discriminatory, practice capable of distinguishing former Nursing Assistants qualified to participate in the MST training program. In addition, they will be obligated to demonstrate the existence of an alternative practice for ensuring that external candidates having the minimum mathematic, reading, and writing skills to serve as a MST. The need to prove these two different categories of information defeats any assertion that a common issue exists.
The distinction between requiring that a defendant demonstrate a given screening examination is “job related” to performance in a position’s training program rather than “job related” to performance in the position itself is a meaningful one. In Washington v. Davis, 426 U.S. 229 (1976), at issue was the validity of a screening exam used to determine entrance into the District of Columbia’s Metropolitan Police Department’s officer training program. The Supreme Court reversed a decision by the D.C. Circuit that had erroneously concluded that the proper focus of the inquiry was the relationship of performance on the entrance exam to performance as a police officer. Instead, the Court agreed with the view of the trial court, which had found that “a positive relationship between the test and training-course performance was sufficient to validate the former wholly aside from its possible relationship to actual performance as a police
8

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officer.” Id. at 250. The Court further observed “that some minimum verbal and communicative
skill would be very useful, if not essential, to satisfactory progress in the training regimen.”6 Id.
Here too GWUH argues that the screening test, when administered to Nursing Assistants, was a
means of determining who could succeed in the training program. Washington v. Davis then,
supports the conclusion that a distinction exists in the manner by which GWUH will defend its
employment practices.7
Thus, while plaintiffs posit that their claim presents one central question: whether “the
test is a valid predictor of success in the job,” Pls.’ Reply at 5, in fact, this case presents two
6 The court is aware that a number of other Circuits require that “where selection tests are shown to predict successful performance in a training program, the study must further demonstrate a link between successful performance in the training program and on the job.” Gonzales v. Galvin, 151 F.3d 526, n.9 (6th Cir. 1998) (citing Harless v. Duck, 619 F.2d 611, 616–17 (6th Cir. 1980); Guardians Ass’n of the New York Police Dep’t, Inc. v. Civil Serv. Comm’n, 633 F.2d 232, 244–47 (2d Cir. 1980) (aff’d 463 U.S. 582 (1983); Ensley Branch of NAACP v. Seibels, 616 F.2d 812, 817–22 (5th Cir 1980)). This additional step in the process of demonstrating the validity of using the screening exams as a selection device for GWUH’s tenweek MST training program, however, only reinforces the court’s conclusion that the difference in the claims of external candidates and former Nursing Assistants renders class certification inappropriate.
7 The permissibility of validating an exam against performance in a training program finds additional support in the Equal Employment Opportunity Commission’s (“EEOC”) Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”). In discussing acceptable elements of job performance against which to judge the validity of a selection procedure, the Guidelines implicitly recognize “performance in training.” The Uniform Guidelines state, in pertinent part:
Where performance in training is used as a criterion, success in training should be properly measured and the relevance of the training should be shown either through a comparison of the content of the training program with the critical or important work behavior(s) of the job(s), or through a demonstration of the relationship between measure of performance in training and measures of job performance. Measure of relative success in training include but are not limited to instructor evaluations, performance samples, or tests. Criterion measures consisting of paper and pencil tests will be closely reviewed for job performance. § 29 C.F.R. 1607.14(B)(3)
9

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questions: (1) whether, for external candidates, the test is a valid predictor of success in the job, and (2) whether, for former Nursing Assistants, the test is a valid predictor of success in the tenweek training program offered by GWUH. Indeed, despite plaintiffs’ protestations to the contrary, defendant’s validation study confirms, not belies, GWUH’s assertion that it used the screening test for these two purposes. This study, performed by Stanley Ridley, Ph.D, professes to examine both “whether a relationship exists between the knowledge/skills assessed by the three screening instruments, and the knowledge/skills needed for MSTs to perform their expected tasks,” as well as “whether each screening instrument is related to performance on the MST Training Program module tests . . . .” See Pls.’ Resp. to Def.’s Supp. Br., Ex. 1 at 3–4 (Report of Stanley Ridley, Ph.D.). Dr. Ridley’s report states explicitly that the latter assessment “was done because each screening instrument was initially chosen for the same purpose: to help assess which MST applicants could successfully complete the MST training program.” Id. at 43.
Because plaintiffs’ challenge ultimately seeks resolution of these two questions, not one, the court holds that plaintiffs’ have failed to demonstrate commonality.
2. Typicality The question of commonality is closely related to Rule 23(a)(3)’s requirement that plaintiffs establish that the claims of the class representatives are typical of those of their class. See, e.g., Gen. Tel. Co. v. Falcon, 457 U.S. 147, n.13 (1982) (“[t]he commonality and typicality requirements of Rule 23(a) tend to merge.”). This requirement is intended to ensure that “the class representatives have suffered injuries in the same general fashion as absent class members.” In re Vitamins Antitrust Litig., 209 F.R.D. at 260 (internal quotation omitted). It is satisfied if “each class member’s claim arises from the same course of events that led to the claims of the
10

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representative parties and each class member makes similar legal arguments to prove the defendant’s liability.” Pigford v. Glickman, 182 F.R.D. 341, 349 (D.D.C. 1998) (citing Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994)).
As with commonality, plaintiffs fail to satisfy this requirement. When examining typicality, “the court must consider whether [the plaintiff] suffered injury from a specific discriminatory . . . practice of the employer in the same manner that the members of the proposed class did, and whether [the plaintiff] and the class members were injured in the same fashion by a . . . policy of employment discrimination.” Wagner v. Taylor, 836 F.2d 578, 591 (D.C. Cir. 1987). With respect to the typicality of the policy at issue, here, the class representatives are composed exclusively of former Nursing Assistants; there is not one external applicant among the named plaintiffs. See Second Am. Compl. ¶¶ 8–13. Accordingly, every class representative was subjected to the policy of taking an exam for admittance into a training program. As discussed above, there is an important distinction between this policy and the policy to which external applicants are subjected. The difference in policy will affect both the burden that GWUH will face, and the manner in which plaintiffs will need to respond.
In addition, although the court disagrees with GWUH’s assertion that former Nursing Assistants were not actually injured by the screening tests, Def.’s Supp. Br. at 12, the court does believe that the nature of the injuries suffered is distinct. Certainly, if the nature of the respective plaintiffs’ injuries is construed broadly, recognizing a certain degree of similarity between the injury suffered by former Nursing Assistants and external applicants for the MST position is
11

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unavoidable. Both groups of individuals were required to pass the same screening examination as part of their respective paths to becoming a MST and those that failed the exam were precluded from acquiring the position.
If the application process for each group is examined more closely, however, it is evident that different injuries were suffered. As the court stated previously, the difference between being refused admittance into a training program and being refused consideration for a position is significant. External applicants were denied a chance to compete against other external applicants while former Nursing Assistants were denied a chance to enroll in a training program, the successful completion of which would have automatically resulted in acquiring a position.
Plaintiffs have failed to demonstrate the typicality and commonality of their claims, accordingly, the court refuses to certify plaintiffs’ proposed class. B. Possibility of Subclasses
Having concluded that class treatment is inappropriate, the court has considered the possibility of creating subclasses in order to cure the deficiencies in plaintiffs’ application. It is well settled that if subclasses are to be certified, each subclass must independently satisfy Federal Rule of Civil Procedure 23’s requirements. See, e.g. Twelve John Does v. Dist. of Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997) (“[A]s Fed. R. Civ. Pro. 23(c)(4)(B) authorizes the district court to create subclasses ‘when appropriate,’ it implies the need for reasonable discretion, even recognizing that any subclass must independently meet the standards for class certification.”). In light of this requirement, the court holds that the creation of subclasses is not feasible.
12

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a. Subclass of Former Nursing Assistants Rule 23(a)(1) demands that plaintiffs demonstrate that “the class is so numerous that joinder of all members is impracticable.” Here, plaintiffs have failed to carry their burden given that, to the best of the court’s knowledge, they have made no representation as to the number of individuals encompassed in the possible subclass of Black former Nursing Assistants that failed the screening examinations. According to GWUH, the parties disagree as to the size of this potential subclass; GWUH contending that only seventeen Nursing Assistants failed the exam and stating that plaintiffs believe that thirty former Nursing Assistants failed the examination. Even assuming that approximately thirty former Nursing Assistants failed the examination, the court holds that this subclass would be too small to satisfy Rule 23(a)’s numerosity requirement. See Thomas v. Christopher, 169 F.R.D. 224, 237 (D.D.C. 1996) (“Although Rule 23 requires no minimum number of class members, numerosity is generally satisfied by a proposed class of at least 40 members.”) (reversed in part on other grounds); Frazier v. Consol. Rail Corp., 851 F.2d 1447, n.10 (D.C. Cir. 1988) (“We are aware of no appellate decision reversing a district court’s denial of class certification on grounds of inadequate numerosity where fewer than 40 prospective members exist.”). b. Subclass of External Applicants A subclass of Black external applicants that failed the screening exam, though likely to satisfy the numerosity requirement,8 is also untenable. As discussed above, there is not a single
8 The court assumes that roughly 140 Black external applicants failed the screening tests. The court arrives at this assumption after subtracting the thirty former Nursing Assistants that failed the screening examination from plaintiffs’ generalized representation “that approximately 172 African-Americans failed at least one of the components of the three-part screening test (thereby failing the entire screening test),” Pls.’ Mot. at 7.
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Case 1:01-cv-02361-JSG Document 56 Filed 08/31/06 Page 14 of 14 external applicant among the class representatives and therefore, no class representative that took the screening exams to determine whether he or she had the minimum reading, writing and math skills to act as an MST. Because this subclass has no representative, it cannot be certified. See, e.g., Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987) (“[E]ach claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.”).
III. CONCLUSION For the aforementioned reasons, it is this 31st day of August, 2006, hereby ORDERED that plaintiffs’ motion for class certification (Dkt. #31) is DENIED.
Henry H. Kennedy, Jr. United States District Judge
14

 
 Case 1:01-cv-02361-JSG Document 89 Filed 12/01/08 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RENAE MARABLE, et al.,
Plaintiffs,
v.
DISTRICT HOSPITAL PARTNERS, L.P.,
Defendant.

Civil Action 01-02361 (HHK)

MEMORANDUM OPINION AND ORDER Plaintiffs Monica Brooks, Tracee Taylor, and others (“Brooks plaintiffs”) bring this action against defendant District of Columbia Partners, L.P. d/b/a George Washington University Hospital (“GWUH”) alleging that GWUH screened applicants for its Multi-Skilled Technician (“MST”) position using a three-part test (“Test(s)”) that was racially discriminatory and thus violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). The Brooks plaintiffs challenge the Test(s) on their behalf and on behalf of a putative class of Black external applicants who failed one or more parts of the Test(s) and therefore did not meet the threshold qualifications for the MST position.1 Before the court is the Brooks plaintiffs’ “Renewed Motion for Class Certification” [#75]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion should be DENIED.

1 GWUH considered applicants in two pools. In the first pool were “internal” applicants, those applicants whom GWUH previously had employed as Nursing Assistants until the Nursing Assistant position was eliminated by the creation of the new MST position. In the second pool were “external” applicants, the applicants who were not internal applicants.

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I. BACKGROUND
The relevant facts and procedural history of this case are set forth in this court’s prior orders denying plaintiff Marable’s original motion for class certification2 [#56] and granting the motion for
leave to amend the complaint to add plaintiffs Brooks and Taylor [#65]. To the recitations set forth
in these orders, the court adds the following.
In light of this court’s holding that it could not certify a sub-class of external applicants
without a Black external applicant who failed the Test(s) among the named representatives [#56],
the original plaintiffs moved to amend their complaint to add Brooks and Taylor, two Black external
applicants who failed the Test(s), as named plaintiffs [#57]. The court granted leave to amend [#65].
Plaintiffs’ third amended complaint [#66], which names Brooks and Taylor as plaintiffs, is now the
operative complaint. Neither Brooks nor Taylor, however, has filed a charge with the EEOC as
required by 42 U.S.C. §§ 2000e-5(e), (f). Only original plaintiff Marable, an internal applicant and
thus not a member of the Brooks plaintiffs’ proposed class, has filed the requisite EEOC charge.
Nevertheless, Brooks and Taylor now seek to certify a class of all Black external applicants for the
MST position who failed the Test(s), with themselves serving as the named class representatives.
2 When denying the first motion for class certification, the court explained that the Test(s) that is the subject of this suit served different purposes for internal and external applicants. For internal applicants, the Test(s) was intended to assess whether they would be successful in the ten-week training program designed to prepare former Nursing Assistants for the MST position. Accordingly, the question of law as to internal applicants was “whether, for former Nursing Assistants, the [Test(s)] is a valid predictor of success in the ten-week training program offered by GWUH.” See Marable v. District of Columbia Hosp. Partners, LP, No. 01-02361, 2006 WL 2547992, *5 (D.D.C. Aug. 31, 2006). In contrast, for external applicants, the Test(s) was intended to assess whether they ultimately would be successful in the MST position. Accordingly, the question of law as to external applicants was “whether, for external candidates, the [Test(s)] is a valid predictor of success in the job.” Id. Because the questions of law relating to the claims of internal and external candidates so differed, the court held that the proposed class, which included both internal and external candidates, did not raise common questions of law to meet the commonality requirement of FED. R. CIV. P. 23(a)(2). Accordingly, the court refused to certify the original plaintiffs’ proposed class. All that said, the court observes that in this renewed motion for class certification the parties agree that the Test(s) served the same purpose for all of the current proposed class members, namely as a predictor of whether they would be successful in the MST position.
2

Case 1:01-cv-02361-JSG Document 89 Filed 12/01/08 Page 3 of 8
II. ANALYSIS The question of class certification is a preliminary question distinct from the merits of a case. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (citation omitted). In considering whether to certify a proposed class, courts generally limit their inquiry to whether the requirements of Rule 23(a) are satisfied and whether the proposed class falls within one of the categories set forth in Rule 23(b).3 See id. As the party moving for class certification, the Brooks plaintiffs bear the burden of establishing that all four of the requirements for class certification have been satisfied. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994); In re Vitamins Antitrust Litig., 209 F.R.D. 251, 256 (D.D.C. 2002). Here, however, the court does not reach the Rule 23 requirements. Rather, because none of the proposed class members, most importantly the named representatives, has exhausted administrative remedies, the proposed class cannot be certified. This court did not address the issue of whether plaintiffs exhausted administrative remedies in its ruling on the original motion for class certification because the original plaintiff and proposed class representative, Marable, had filed the requisite EEOC charge. Brooks and Taylor have not. Thus, the administrative exhaustion issue is now front-and-center.
3
Rule 23 provides in relevant part: (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole . . . . FED. R. CIV. P. 23.
3

Case 1:01-cv-02361-JSG Document 89 Filed 12/01/08 Page 4 of 8
GWUH contends that this Title VII class cannot be certified because neither named plaintiff has filed a charge with the EEOC, and therefore they have failed to exhaust administrative remedies. (Def.’s Opp’n to Pls.’ Renewed Mot. for Class Certification 3-4.) According to GWUH, it is not enough that internal applicant Marable filed a charge because she is not a member of the proposed class of external applicants. (Id. at 5.) The Brooks plaintiffs counter that the court allowed Brooks and Taylor to intervene under the single-filing rule, and, under that rule, they can rely on Marable’s charge to satisfy the exhaustion requirement regardless of whether Marable is a member of the proposed class. (Pls.’ Reply to Def.’s Opp’n to Pls.’ Renewed Mot. for Class Certification 3.)
It is well-settled that a party seeking Title VII relief must file a timely employment discrimination charge with the EEOC and obtain a right-to-sue letter before seeking judicial relief. 42 U.S.C. §§ 2000e-5(e), (f); see Foster v. Gueory, 655 F.2d 1319, 1321 (D.C. Cir. 1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973); Love v. Pullman Co., 404 U.S. 522, 523 (1972); Evans v. Sheraton Park Hotel, 503 F.2d 177, 183 (D.C. Cir. 1974)). Each plaintiff in a Title VII class action, however, need not file an EEOC charge so long as one member of the class has met the filing prerequisite. Foster, 655 F.2d at 1321-22 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975); Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir. 1976); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1333 n.1 (D.C. Cir. 1973); Macklin v. Spector Freight Sys., Inc., 478 F.2d 979, 985 n.11 (D.C. Cir. 1973)). In determining whether a proposed class member must file her own administrative charge, this Circuit consistently favors a bright-line rule: “Exhaustion of administrative remedies by at least one named plaintiff is a condition precedent to sustaining a class action under Title VII.” Thomas v. Reno, 943 F. Supp. 41, 43 (D.D.C. 1996) (citing Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1434 (D.C. Cir.
4

Case 1:01-cv-02361-JSG Document 89 Filed 12/01/08 Page 5 of 8
1988)), aff’d 159 F.3d 637 (D.C. Cir. 1997); see Hartman v. Duffey, 88 F.3d 1232, 1235 (D.C. Cir. 1996) (“[E]xhaustion of administrative remedies by one member of the class satisfies the requirement for all others . . . .”) (emphasis added); Foster, 655 F.2d at 1321-22 (holding that “at least one member of the plaintiff class” must meet the filing prerequisite); Contreras v. Ridge, 305 F. Supp. 2d 126, 132 (D.D.C. 2004). Applying this rule here, the Brooks plaintiffs’ proposed class cannot be certified because no class member has filed the requisite charge with the EEOC. See id.
Notwithstanding the clarity of the bright-line rule set forth above, the Circuit also has explained that “the critical factor in determining whether an individual Title VII plaintiff must file an EEOC charge, or whether he may escape this requirement by joining with another plaintiff who has filed such a charge, is the similarity of the two plaintiffs’ complaints.” Foster, 655 F.2d at 1322. If complaints are so similar that filing separate charges would serve no purpose, then requiring separate EEOC filings would be wasteful. See id. However, where complaints differ to the extent that there is a real possibility that one claim may be settled administratively while the other may be resolved only in the courts, plaintiffs must file separate EEOC charges to effectuate the purpose of Title VII’s provisions for administrative relief. Id. (citing Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968)).
Even under this pragmatic test, the motion for class certification must fail. In support of its decision to certify the proposed class, the Foster Court found that the proposed class members had “asserted claims of racial discrimination that are so similar to those asserted by the original plaintiffs that no purpose would be served by requiring [them] to file independent racial discrimination charges with the EEOC.” Foster, 655 F.2d at 1323. This court, however, in refusing to certify the Marable class because the claims of external and internal applicants did not satisfy Rule 23's commonality
5

Case 1:01-cv-02361-JSG Document 89 Filed 12/01/08 Page 6 of 8
requirement, reached the opposite conclusion. See Marable, 2006 WL 2547992, at *3-5; see also supra note 2. The court expresses no opinion as to whether filing administrative charges with the EEOC will lead to a different result for Brooks and Taylor than it did for Marable. It is enough to acknowledge that the Brooks plaintiffs’ claims raise different questions of law than did the Marable plaintiffs’ claims, see id., and therefore the EEOC and GWUH should be given an opportunity to resolve them before the Brooks plaintiffs may resort to the courts. “To hold otherwise would make a mockery of the concept of a right to sue and of the procedures by which one obtains the right.” EEOC v. Air Line Pilots Ass’n., 885 F. Supp. 289, 294 (D.D.C. 1995). Putative class members who cannot meet the procedural prerequisites for bringing a Title VII suit, like Brooks and Taylor, should not be able to “use the guise of a motion to intervene to take over as the sole class representative[s] for [Marable,] someone who initiate[d] but [was] not legitimately able to continue [the] class action.” Id.
The Brooks plaintiffs rely heavily on Tolliver v. Xerox Corp., 918 F.2d 1052 (2d Cir. 1990),4 for the proposition that, under the single-filing rule, they may rest on Marable’s EEOC charge to satisfy their administrative exhaustion requirement. In that case, the court described three tests to “determin[e] whether an administrative charge suffices to permit piggybacking by a subsequent plaintiff.” Id. at 1057-58. The court declined to employ the “broadest test,” which “requires only that the claims of the administrative claimant and the subsequent plaintiff arise out of the same circumstances and occur within the same general time frame.” Id. at 1057. Instead, the court
4 Tolliver is an ADEA case, not a Title VII case. Although courts interpret administrative exhaustion requirements similarly under the ADEA and Title VII considering that the ADEA’s filing requirement was modeled after Title VII’s, see Tolliver, 918 F.2d at 1056-57 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11 (1982)), the court notes that Title VII, unlike the ADEA, prohibits any person from initiating a suit without first filing an administrative charge and obtaining a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). Thus, exceptions to Title VII administrative exhaustion requirements may be more limited than those under the ADEA. See id.
6

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adopted a narrower test, which “requires that the administrative claim give notice that the discrimination is ‘class-wide,’ i.e., that it alleges discrimination against a class of which the subsequent plaintiff is a member.” Id. at 1058 (citing Kloos v. Carter-Day Co., 799 F.2d 397, 401 (8th Cir. 1986)).5 Applying that test, the court held that administrative charges that had been filed by members of a decertified class satisfied the administrative exhaustion requirement for former members of that class who had not filed administrative charges. See id. at 1059-60.
The most obvious problem with applying Tolliver here is that Marable’s EEOC charge is not before the court. Therefore, the court cannot determine the scope of Marable’s charge nor whether it was sufficiently broad to encompass the Brooks plaintiffs’ claims. Marable did include her EEOC right-to-sue letter as an exhibit to her original motion to dismiss [#31-3], and that letter does make some reference to her charge, but the court cannot play a guessing game, even an educated one; simply put, the court cannot base a holding on the scope of an administrative charge not before it. Even if Marable’s charge was before the court, it is not bound to accept the Second Circuit’s broad reading of the single-filing rule, see Tolliver, 918 F.2d at 1058; the Brooks plaintiffs point to no case in this Circuit which does so. Indeed, the court has misgivings about adopting such a broad rule. It has the potential to excuse plaintiffs from exhausting administrative remedies anytime they can point to a similar charge by a similar plaintiff with respect to the same defendant. This exception could swallow the rule and goes beyond the practical inquiry described in Foster, 655 F.2d at 1323. Its goal was more modest: advancing judicial efficiency in the unique context of a class action. See id. at 1322. Better then to leave it to its limits.
5 The court also declined to adopt a “still narrower test,” which “requires that the administrative claim not only allege discrimination against a class but also allege that the claimant purports to represent the class or others similarly situated.” Tolliver, 918 F.2d at 1058 (citing Naton v. Bank of Cal., 649 F.2d 691, 697 (9th Cir. 1981)).
7

Case 1:01-cv-02361-JSG Document 89 Filed 12/01/08 Page 8 of 8 Marable’s EEOC charge cannot satisfy the Brooks plaintiffs’ administrative exhaustion requirements because Marable is not a member of the proposed class. See Hartman, 88 F.3d at 1235; Foster, 655 F.2d at 1321-22; Contreras, 305 F. Supp. 2d at 132; Thomas, 943 F. Supp. at 43. Accordingly, the renewed motion for class certification must be denied because the Brooks plaintiffs have failed to exhaust their administrative remedies. See id.; see also 42 U.S.C. §§2000e-5(e), (f).
III. CONCLUSION For the foregoing reasons, it is this 1st day of December, 2008, hereby ORDERED that the “Renewed Motion for Class Certification” [#75] is DENIED.
8

 
 Case 1:01-cv-02361-JSG Document 66 Filed 05/29/07 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION
______________________________________________________

*

MS. RENAE MARABLE

*

5003 HUNT STREET, N.E.

*

APARTMENT 22

*

WASHINGTON, D.C. 20019

*

*

- AND -

*

*

MS. JANETTE ADAMS

*

7509 HARPERS DRIVE

*

FORT WASHINGTON, MARYLAND 20744

*

*

- AND -

*

*

MS. KATHLEEN MCDONALD

*

6105 BREEZEWOOD COURT

*

APARTMENT 204

*

GREENBELT, MARYLAND 20770

*

*

- AND -

*

*

MS. ZAKIYYAH MUHAMMAD

*

2656 BOWEN ROAD S.E.

*

APARTMENT 302

*

WASHINGTON, D.C. 20020

*

*

- AND -

*

*

MS. NANCY PRINCE

*

7807 WESTOVER LANE

*

CLINTON, MARYLAND 20735,

*

*

- AND -

*

*

MS. MONICA BROOKS

*

234 55TH STREET NE

*

WASHINGTON, DC 20019,

*

*

- AND -

*

*

MS. TRACEE TAYLOR

*

9316 WASHINGTON BLVD.

*

LANHAM, MARYLAND 20706,

*

Case 1:01-cv-02361-JSG Document 66 Filed 05/29/07 Page 2 of 16

*

ON BEHALF OF THEMSELVES AND ALL OTHERS

*

SIMILARLY SITUATED,

*

*

PLAINTIFFS

*

*

v.

* Civil Action 1:01cv02361.

*

DISTRICT HOSPITAL PARTNERS, L.P.

*

D.B.A. GEORGE WASHINGTON UNIVERSITY HOSPITAL *

901 23RD STREET, NW

*

WASHINGTON, D.C. 20037

*

*

DEFENDANT

*

______________________________________________________*

THIRD AMENDED COMPLAINT AND JURY DEMAND
The Plaintiffs, on behalf of themselves and all others similarly situated, hereby allege the
following:

I. PRELIMINARY STATEMENT.

1. Plaintiffs bring this action to challenge the race discrimination committed by

District Hospital Partners, L.P., doing business as George Washington University Hospital

(hereinafter “GWUH”), against African-American candidates for employment as Multi-Skilled

Technicians at GWUH who were subjected to a screening test as a condition of employment.

These candidates include GWUH employees who previously worked as Nursing Assistants, other

GWUH employees, and external applicants. This action also challenges the Defendant’s

discrimination in requiring that former Nursing Assistant applicants to the MST position submit to

and pass a ten-part training and testing program. The employment policies and practices of

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GWUH complained of herein have the effect of denying employment or continued employment and equal compensation to qualified African-American employees and applicants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Plaintiffs sue on behalf of themselves and a class of all similarlysituated African-American applicants to the position of Multi-Skilled Technician at GWUH and all present and former African-American Nursing Assistants who were employees of the Defendant GWUH at any time between July 28, 1998, and November 15, 1998.
II. JURISDICTION 2. This Court has subject-matter jurisdiction pursuant to 42 U.S.C. § 2000e-5(f), 28 U.S.C. § 1343(a)(4), and 28 U.S.C. § 1331. The jurisdiction of this Court is invoked to secure protection of and to redress deprivation of rights secured by 42 U.S.C. § 2000e et seq., providing for injunctive and other relief against, inter alia, racial discrimination in employment. 3. This Court has personal jurisdiction over the defendant GWUH because it does business and is headquartered in Washington, D.C.
III. VENUE. 4. Venue is proper in this district pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1391(b) & (c). GWUH’s principal place of business is located in the District of Columbia and a substantial part of the unlawful acts set forth below occurred in this district.

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IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES. 5. Plaintiffs have exhausted their administrative remedies pursuant to 42 U.S.C. § 2000e-5(f)(3). 6. Plaintiff Marable filed a timely charge of discrimination on her own behalf and on behalf of all named Plaintiffs with the United States Equal Employment Opportunity Commission on or about April 2, 1999, complaining of the acts which give rise to this lawsuit. 7. On August 14, 2001, Plaintiffs’ counsel, on behalf of Plaintiffs, received a notice of her right to sue within 90 days, and this suit is timely brought on behalf of Marable, all other named Plaintiffs, and on behalf of themselves and all others similarly situated.

V. PLAINTIFFS. 8. Plaintiff Renae Marable was a Nursing Assistant until she was terminated on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to complete the Multi-skilled Technician training. Ms. Marable passed seven of the ten tests before failing the Gastro-Intestinal module. Ms. Marable had been employed by GWUH for approximately ten years. Ms. Marable passed the math, reading, and writing tests which were a prerequisite to taking the Multi-skilled Technician training course. 9. Plaintiff Jeanette Adams was a Nursing Assistant until she was terminated on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to complete the Multi-skilled Technician training. Ms. Adams did not pass the math, reading, and writing tests which were a prerequisite to taking the Multi-skilled Technician training course.

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Ms. Adams had been employed by GWUH for approximately 25 years at the time of her termination.
10. Plaintiff Kathleen McDonald was a Nursing Assistant until she was terminated on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to complete the Multi-skilled Technician training. Ms. McDonald did not pass the math, reading, and writing tests which were a prerequisite to taking the Multi-skilled Technician training course. Ms. McDonald had been employed by GWUH for approximately ten years at the time of her termination.
11. Plaintiff Zakiyyah Muhammad was a Nursing Assistant until she was terminated on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to complete the Multi-skilled Technician training. Ms. Muhammad passed the math, reading, and writing tests which were a prerequisite to taking the Multi-skilled Technician training course, but did not pass all of the tests required pursuant to the Multi-skilled Technician training. Ms. Muhammad had been employed by GWUH for approximately five years.
12. Plaintiff Nancy Prince was a Nursing Assistant until she was terminated on November 15, 1998, because the Nursing Assistant job she held was eliminated and she failed to complete the Multi-skilled Technician training. Ms. Prince did not pass the math, reading, and writing tests which were a prerequisite to taking the Multi-skilled Technician training course. Ms. Prince had been employed by GWUH for more than five years at the time of her termination. Ms. Prince became employed as a part-time Nursing Assistant in GWUH’s Float Pool after she was terminated from her position as a regular full-time Nursing Assistant.

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13. Plaintiff Monica Brooks was an external candidate for the position of MultiSkilled Technician. She failed the Defendant’s screening test on or about March 5, 1999.
14. Plaintiff Tracee Taylor was an external candidate for the position of Multi-Skilled Technician. She failed the Defendant’s screening test on or about October 23, 2002.

VI. DEFENDANT. 15. George Washington University Hospital is the trade name of District Hospital Partners, L.P. Defendant District Hospital Partners, L.P., doing business as George Washington University Hospital, is a for-profit business located in and doing business in the District of Columbia. District Hospital Partners, L.P., doing business as George Washington University Hospital, is an employer and was the Plaintiffs’ employer within the meaning of Title VII of the Civil Rights Act of 1964.

VII. CLASS ACTION. 16. This action is brought by the Plaintiffs as a class action pursuant to 42 U.S.C. § 2000e et seq., and pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all African-American candidates for employment as Multi-Skilled Technicians at GWUH who were subjected to a screening test as a condition of employment and all present and former AfricanAmerican Nursing Assistants who were employees of the Defendant GWUH at any time between July 28, 1998, and November 15, 1998.

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17. This action is brought by the Plaintiffs as a class action pursuant to 42 U.S.C.

§ 2000e et seq., and pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of all

African-American candidates for employment as Multi-Skilled Technicians at GWUH who were

subjected to a screening test as a condition of employment and all present and former African-

American Nursing Assistants who were employees of the Defendant GWUH at any time between

July 28, 1998, and November 15, 1998.

18. Defendant engaged in employment practices that emanate from a common plan or

scheme that uniformly governed all applicants for the position of Multi-Skilled Technician

throughout its facility. Defendant’s employment practices affected the rights of members of the

class throughout its facility by limiting and classifying black employees in ways which deprive

them of equal employment opportunities and otherwise effect their status, compensation, and

benefits as employees because of their race. Under the aforesaid circumstances, the common

interests of the class are such that any interest of the individual members of the class is

outweighed by the desirability of concentrating the controversy in a single forum, and a class

action is superior to any other available method for the fair and efficient adjudication of the

controversy.

19. Plaintiffs request that the Court certify a class consisting of all African-American

candidates for employment as Multi-Skilled Technicians at GWUH who were subjected to a

screening test as a condition of employment and all African-American Nursing Assistants who

were employees of the Defendant GWUH at any time between July 28, 1998, and November 15,

1998, including those former Nursing Assistants who were subjected to a training course

following their successful completion of the screening test.

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20. This action is properly commenced as a class action under Rule 23(a) because the
requirements of this Rule are met, as explained in Paragraphs 19 through 22.
21. The class members are sufficiently numerous to make joinder of all members
impracticable. Upon information and belief, GWUH employed approximately one hundred
twenty-five African-American Assistant Nurses. Upon information and belief, greater than 300
individuals applied be MSTs at GWUH.
22. The claims alleged on behalf of the Plaintiffs raise questions of law or fact
common to the class. These common questions include, but are not necessarily limited to, the
following:
a. whether the requirement that Nursing Assistants request a transfer to become a Multi-skilled Technician and thereby avoid termination disproportionately negatively affected the terms and conditions of African-American employees, in violation of Title VII;
b. whether the math, reading, and writing tests disproportionately negatively affected the terms and conditions of African-American applicants, in violation of Title VII;
c. whether the math, reading, and writing screening test was administered even though there was insufficient business necessity to merit it, in violation of Title VII;
d. whether the putative business reasons for testing the candidates’ math, reading, and writing skills could have been met through other means, in violation of Title VII;
e. whether the examinations provided at the end of each of the ten classes in the Multi-skilled Technician training disproportionately negatively affected the terms and conditions of African-American employees, in violation of Title VII;
f. whether the putative business reasons for testing the candidates’ knowledge at the end of each of the ten classes in the Multi-skilled Technician training could have been met through other means, thereby violating Title VII;

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g. whether the subject matter of the ten classes in the Multi-skilled Technician training accurately reflected the tasks performed by the Multi-skilled Technicians; and
h. whether the tasks performed by Multi-skilled Technicians were materially different from the tasks performed by the Nursing Assistants.
23. The claims alleged on behalf of plaintiffs are typical of those of the class. All of the claims arise from GWUH’s policies pursuant to which Defendant required that all applicants to the position of Multi-Skilled Technician were required to take and pass math, reading, and writing screening tests in order to be considered for employment and pursuant to which Defendant terminated the employment of all Nursing Assistants and instituted a policy requiring that all Nursing Assistants employed as of July 28, 1998, (a) complete a Request to Transfer form within two weeks; (b) pass math, reading, and writing screening tests; (c) attend a ten-week training course; and (d) pass ten examinations during the training course.
24. The class representatives will adequately and fairly protect the interest of the class because they have the same interests as the class and no conflicts exist within the class. The class counsel will adequately and fairly protect the interest of the class because they are competent and experienced lawyers specializing in employment discrimination cases.
25. This class action is properly maintainable as a class action under Federal Rule of Civil Procedure 23(b)(2) because the Defendant has acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
26. The class action is also properly maintainable pursuant to Federal Rule of Civil Procedure 23(b)(3) because the questions of law and fact common to members of the class

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predominate over questions affecting only individual members and a class action is superior to other available methods for the fair and efficient resolution of this controversy.

VIII. FACTUAL ALLEGATIONS.

27. Prior to November 1998, GWUH employed approximately one hundred twenty-five

Nursing Assistants.

28. The Nursing Assistants performed basic nursing skills as assistants to and

supervised by registered nurses. Nursing Assistants’ job responsibilities included taking vital

signs, collecting stool and urine specimens, explaining to patients how to use spirometry

equipment, recording patient intakes and outputs, bathing patients, assisting with colostomy care,

and the like. In addition, some of the Nursing Assistants performed other job duties from time-

to-time, such as inserting Foley Catheters, changing dressings, and testing blood-glucose levels.

Many of the Nursing Assistants had participated in various classes to improve their skills,

including gaining certification as Nursing Assistants and learning particular job-related skills.

29. The Nursing Assistants are almost exclusively African-American women. Upon

information and belief, approximately 95% of the Nursing Assistants were African-American,

and virtually all of the remaining 5% were other minorities. Upon information and belief, only a

couple of Nursing Assistants were Caucasian.

30. In July 1998, GWUH notified all Nursing Assistants that it would be terminating

their employment effective November 15, 1998. At the same time, GWUH created a new position

called Multi-skilled Technician (hereinafter “MST”). GWUH required if a Nursing Assistant

wished to become an MST, she must (a) complete a Request to Transfer form within

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approximately two weeks; (b) pass three examinations; (c) attend a Multi-skilled Technician

training course; and (d) pass examinations during the training course.

31. Before a Nursing Assistant was permitted to take the Multi-skilled Technician

training course, she was required to pass three preliminary written examinations. One

examination tested basic arithmetic, another tested reading comprehension, and the third

examination tested writing. The passing grade for all three examinations was fixed arbitrarily at

eighty.

32. The nominal purpose of the tests was to ascertain whether the Nursing Assistant

possessed certain qualifications which GWUH claimed would be necessary in order to complete

the Multi-skilled Technician training. In fact, the skills tested by the pre-training examinations

were not reasonably related to the training or the job responsibilities of the MST position.

33. The Defendant’s own validation study established that the some of this testing had

a disparate impact on African-American candidates.

34. Virtually all of the Nursing Assistants took the math, reading, and writing

examinations. Approximately three-quarters of them failed to pass all three tests.

35. After the Nursing Assistant passed the math, reading, and writing examinations,

she was required to attend the Multi-skilled Technician training course, consisting of ten classes.

Each class, about eight hours long, would end with a written examination.

36. Approximately one-quarter of the Nursing Assistants failed to pass all of the ten

weekly tests.

37. The examinations during the training course included testing in skills unrelated to

the actual job responsibilities of the MST position. For example, though the Gastro-Intestinal test

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covered tube feeding, the MSTs are not now performing tube feeding as part of their

responsibilities.

38. In addition to the Nursing Assistants who applied to be MSTs, several hundred

other individuals, many of whom are African-American, have applied to be MSTs and have been

obligated to take the math, reading, and writing screening tests.

39. The MSTs are performing the same tasks that were required of Nursing Assistants.

When the position was first created, MSTs were assigned to perform only a few additional tasks,

such as doing EKGs, that were not performed by Nursing Assistants. However, those few

additional tasks were not done by all of the MSTs and they were rarely done by MSTs at all. Most

of the additional tasks not performed by Nursing Assistants but which were once performed by

MSTs have been discontinued, such as drawing blood. Upon information and belief, MSTs

performing these additional tasks caused injury to patients. Upon information and belief, the

injuries to patients was a factor in Defendant’s decision to terminate the MSTs’ performance of

those tasks.

40. Prior to eliminating the Nursing Assistant positions, GWUH assigned three Nursing

Assistants to each floor during each shift. After the Nursing Assistant positions were eliminated,

the Nursing Assistants were replaced with a like number of MSTs. When MSTs are unavailable, a

Nursing Assistant from the Float Pool is assigned to replace the MST. On some occasions, GWUH

hires Nursing Assistants and MSTs from independent agencies. Nursing Assistants working in

the Float Pool are now called Central Service Associates.

41. Many of the Nursing Assistants possess medical certificates attesting to their basic

medical skills. In many instances, the Nursing Assistants have been employed by Defendant for

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many years. A substantial number of nurse assistants who did not pass Defendant’s tests were in

fact highly qualified for the position because they possessed the necessary skills.

42. Only those Nursing Assistants who completed the Request to Transfer form,

passed the two pre-training examinations, attended the training course, and passed the

examinations during the training course were permitted to become MSTs.

43. The Defendant’s requirements have had a disparate impact on African-American

employees of GWUH.

44. GWUH has employed many of the Nursing Assistants who failed the as Multi-

skilled Technician examinations as part-time Nursing Assistants to work in the Float Pool. Many

Nursing Assistants declined to work for GWUH in the Float Pool because GWUH informed them

that the assignments would only last two months; in fact, the assignments continue to this day.

These part-time positions offered no fixed hours and no fringe benefits, including health

insurance, life insurance, paid holidays and vacations, pensions, and retirement matching funds.

From time-to-time, these employees have been employed on a full-time basis because of the

continuing need for the medical care provided by the terminated Nursing Assistants. Upon

information and belief, one or more part-time Nursing Assistants in the Float Pool have been

given permanent employment as Nursing Assistants.

45. The MSTs spend most of their work time performing the same tasks that the

Nursing Assistants had performed. In fact, upon information and belief, many MSTs who were

hired from outside the pool of Nursing Assistants left GWUH because of dissatisfaction with the

job responsibilities, which closely resembled the duties of Nursing Assistants.

46. GWUH has approximately thirty MSTs, half of whom had been Nursing Assistants.

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47. Persons who were hired as MSTs who were not Nursing Assistants were not required to attend the ten-week training course.

COUNT ONE

DISPARATE IMPACT DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

48. Plaintiff incorporates Paragraphs 1 through 46 of this Complaint as if fully alleged

herein.

49. In July 1998, GWUH created a policy abolishing all Nursing Assistant positions at

GWUH.

50. In July 1998, GWUH imposed a requirement that all Nursing Assistants

(a) complete a Request to Transfer form within approximately two weeks; (b) pass three

examinations testing their math, reading, and writing skills; (c) attend a ten-week training course;

and (d) pass ten examinations during the training course. GWUH has also required that all

applicants to the position of MST submit to and pass math, reading, and writing screening tests.

These requirements have a disparate impact on African-American employees.

51. GWUH’s discriminatory practices described above have denied African-American

former Nursing Assistants continued employment to which they are entitled, and applicants to the

position of MST future employment to which they are otherwise entitled, which has resulted in the

loss of past and future wages and other job benefits.

52. These employment practices violated Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-2.

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
a. Declare that the practices described in this Complaint existed at GWUH and that they are unlawful;
b. Issue a permanent injunction prohibiting the Defendant, its officers, agents, employees and successors, from engaging in the discriminatory employment practices complained of herein;
c. Issue a permanent mandatory injunction requiring that Defendant adopt employment practices in conformity with the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.;
d. Reinstate the Plaintiffs in the positions that they previously held or in substantially identical positions;
e. Award back pay and other job benefits sufficient to make Plaintiffs and the Class whole;
f. Award compensatory and punitive damages appropriate to the proof at trial; g. Award reasonable attorneys’ fees and costs, including expert fees, pursuant to 42
U.S.C. § 2000e and 42 U.S.C. § 1988; and h. Order such other and further relief as the Court deems just and proper.

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DEMAND FOR JURY TRIAL Plaintiffs, by and through their under-signed counsel, herewith demands a trial by jury on all issues.
Respectfully submitted, /s/ S. Micah Salb, #453197 Richard H. Semsker, #413886 LIPPMAN, SEMSKER & SALB, LLC 7700 Old Georgetown Road Suite 500 Bethesda, Maryland 20814 (301) 656-6905 Attorneys for Plaintiff

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LIPPMAN SEMSKER & SA L B , LLC 7700 Old Georgetown Road, Suite 500
Bethesda, Maryland 20814 (301) 656-6905

 
 Case 1:01-cv-02361-JSG Document 145 Filed 06/04/09 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RENAE MARABLE, et al., Plaintiffs, v.
DISTRICT HOSPITAL PARTNERS, L.P., Defendant.

Civil Action No. 01-02361 (HHK)(AK)

MEMORANDUM ORDER1 Pending before the Court are Plaintiffs’ Motion to Compel Payment of Expert’s Reasonable Fee for Defendant’s Deposition [128], Defendant’s Opposition [131], and Plaintiffs’ Reply [132]. I. Background John A. Veres III, Ph.D., is Plaintiffs’ expert and an accomplished professional in the statistical analyses and industrial psychology fields. (Pls.’ Mot. to Compel at 2.) Dr. Veres attended a deposition at the office of DLA Piper USA in Washington, D.C. on February 2, 2009, in compliance with a notice of deposition that Defendant served on him. (Id.) The deposition required Dr. Veres to travel from his hometown of Montgomery, Alabama and stay overnight in the District of Columbia. (Id.) Dr. Veres submitted a bill for his appearance at the deposition totaling $9,256.92 on February 4, 2009. (Id. at 3.) The charges included 4.75 hours of preparation time and 5.5 hours of deposition time billed at Dr. Veres’ standard rate of $450 per
1
United States District Judge Henry H. Kennedy, Jr., referred this case to the undersigned Magistrate Judge for disposition of all pending and future discovery-related motions pursuant to Local Civil Rule 72.2(a). (See Order [129] dated 03/17/09.)
1

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hour, 12.25 hours of travel time billed at $225 per hour (half his standard rate), and travel expenses. (Id.; Def.’s Opp’n Ex. C.)
Plaintiffs’ counsel contacted Defendant’s counsel about reimbursement for travel expenses before the deposition, and Defendant’s counsel indicated that it did not intend to pay for Dr. Veres’ travel expenses. (Pls.’ Mot. at 2; see also Def.’s Opp’n Ex. A; Def.’s Opp’n Ex. B.) Defendant’s counsel ultimately paid Dr. Veres $1,375 for 5.5 hours of deposition time at the rate of $250 per hour and refused to pay the remaining balance on the invoice. (Pls.’ Mot. at 3.) Defendant later admitted that it should have paid Dr. Veres $1,512.50 for 5.5 hours of deposition time at the rate of $275 per hour, the rate that it deemed reasonable. (Def.’s Opp’n at 2, 6.) In addition to not reimbursing Dr. Veres his full rate for time spent in the deposition itself, Defendant refuses to pay Dr. Veres for time he spent preparing for the deposition, time traveling to the deposition, and travel expenses. (Pls.’ Mot. at 3.) II. Discussion
A. Reasonableness of Expert Fee Federal Rule of Civil Procedure 26(b)(4)(C) provides that “unless manifest injustice would result, the court must require that the party seeking discovery: (I) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (B).” FED. R. CIV. P. 26(b)(4)(C). The decision on what is a reasonable fee is within the discretion of the court. Feliciano v. County of Suffolk, 246 F.R.D. 134, 137 (E.D.N.Y. 2007); Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D. Del. 2003); Edin v. Paul Revere Life Ins. Co., 188 F.R.D. 543, 546 (D. Ariz. 1999). Some courts consider the following seven factors when determining the reasonableness of an expert’s fee:
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(1) the witness’s area of expertise; (2) the education and training required to provide the expert insight which is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interests implicated by Rule 26. Fisher-Price, 217 F.R.D. at 333; Edin, 188 F.R.D. at 546. The circumstances of each case determine the weight the court should give any particular factor. New York v. Solvent Chem. Co., Inc., 210 F.R.D. 462, 468 (W.D.N.Y. 2002). Ultimately, courts must strike a balance between allowing plaintiffs to choose their own experts and preventing defendants from being “unfairly burdened by excessive ransoms which produce windfalls for the plaintiff’s experts.” Anthony v. Abbott Labs., 106 F.R.D. 461, 465 (D.R.I. 1985). Plaintiffs move the Court to order Defendant to pay Dr. Veres at a rate of $450 per hour for the time he spent in the deposition. (Pls.’ Mot. at 7.) Defendant argues that Dr. Veres’ rate is not reasonable because it is not comparable to the rates of other experts, namely Defendant’s own expert, who only charges $275 per hour. (Def.’s Opp’n at 4-5.) However, the circumstances here suggest that the more relevant factors are Dr. Veres’ expertise, the rate he charges Plaintiffs, and the rate he typically charges on similar matters. Dr. Veres’ extensive publications and litigation experience related to racially-discriminatory hiring practices indicate that he is an accomplished expert in the field. (Pls.’ Reply at 5.) In addition to expertise, courts “look to the fee being charged by the party who retained the expert, and the fees traditionally charged by the expert on related matters.” Solvent Chem., 210 F.R.D. at 468. Dr. Veres’ rate of $450 per hour was his usual and customary rate for all private litigants at the time of deposition. (Pls.’ Mot. at 7.) Dr. Veres, however, had increased his usual and customary rate from $400 per hour to $450 per hour on January 1, 2009. (Id.) Under these circumstances, the Court finds $400 per hour to
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be the reasonable and appropriate rate because it was Dr. Veres’ standard rate from 2005 through 2008 and the rate he presumably charged Plaintiffs for his services prior to January 1, 2009. (Id.) The Court therefore concludes that Defendant was not justified in compensating Dr. Veres at a rate of only $250 per hour, and the Court will order Defendant to reimburse Dr. Veres for 5.5 hours of deposition time at the rate of $400 per hour.
B. Preparation Time The next question is whether compensation for “time spent in responding to discovery” in Federal Rule of Civil Procedure 26(b)(4)(C) includes time spent preparing for a deposition. FED. R. CIV. P. 26(b)(4)(C). This Circuit has permitted the required payment of fees and expenses “incidental to the expert’s services.” Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984, 990 (D.C. Cir. 1979). District courts in other circuits have also required compensation for time spent preparing for a deposition. Solvent Chem., 210 F.R.D. at 471; Fleming v. United States, 205 F.R.D. 188, 190 (W.D. Va. 2000). However, in United States ex rel. Fago v. M&T Mortgage Corp., Judge Facciola declined to recognize that time spent preparing to respond to a deposition notice was compensable as a general rule. 238 F.R.D. 3, 15 (D.D.C. 2006). Instead, Judge Facciola urged consideration of the circumstances in each individual case, specifically the complexity of the issues involved and the interval of time between the production of expert reports and the deposition, to determine the predominate purpose of the preparation time. Id. at 15 (finding that expert fees were not appropriate because the issues were not complex and the expert had produced his report only three months earlier). While Plaintiffs ask the Court to order Defendant to pay for all of Dr. Veres’ preparation time, Defendant argues that none of Dr. Veres’ preparation time is compensable. (Def.’s Opp’n at 2-3.) The circumstances in this case suggest that Dr. Veres should be compensated for some
4

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of the 4.75 total hours he spent preparing for the deposition. Dr. Veres had produced his expert report approximately four months before his deposition, and in order to prepare for the deposition, he spent 2.5 hours reviewing the report, complex data sets, and accompanying analysis. (Pls.’ Mot. at 10; Pls.’ Reply at 3-4.) It appears that Dr. Veres’ time reviewing documents was “solely or predominantly for the purpose of responding to the opposition party’s discovery.” Fago, 238 F.R.D. at 15. Furthermore, preparation of this sort can aid in the efficiency and productivity of a deposition, reducing its time and cost. Hose v. Chicago & N.W. Transp. Co., 154 F.R.D. 222, 227-228 (S.D. Iowa 1994).
Accordingly, Dr. Veres is entitled to compensation for the 2.5 hours he spent reviewing documents in preparation for the deposition. While courts are divided on the rate of compensation for preparation time, this Court is not inclined to set an expert’s rate for preparation time below his standard rate. Compare Packer v. SN Servicing Corp., 243 F.R.D. 39, 43 (D. Conn. 2007) (finding that an expert’s preparation time may be compensated at the same rate as deposition time), with Boos v. Prison Health Servs., 212 F.R.D. 578, 580 (D. Kan. 2002) (explaining that $200 per hour is a reasonable rate for document review where an expert’s rate for deposition time is $500 per hour). The Court therefore will order Defendant to reimburse Dr. Veres for 2.5 hours of preparation time at the hourly rate of $400 per hour.
Defendant specifically objects to Dr. Veres’ charge of one hour at $450 per hour for communications with his counsel. (Def.’s Opp’n at 3.) As Judge Facciola noted in Fago, preparation time can include “consultation between the responding party’s counsel and the expert to prepare the expert to best support the responding party’s case and to anticipate questions from seeking parties’ counsel.” 238 F.R.D. at 15 (quoting Rhee v. Witco Chem. Corp., 126 F.R.D. 45, 47 (N.D. Ill. 1989)). These types of communications represent trial preparation, and the
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opposing side should not have to pay for them. Id. Because his emails and phone conversations with Plaintiffs’ counsel may have been akin to trial preparation, Dr. Veres is not entitled to bill Defendant for that time.
Defendant also objects to Dr. Veres’ charge of 1.25 hours at $450 per hour for “gather[ing], [and] print[ing] docs.” (Def.’s Opp’n at 3.) Indeed, some courts have refused to compensate experts at their normal hourly rate for administrative tasks. Packer, 243 F.R.D. at 43-44 (“time spent collecting documents . . . should not be compensated”); Fisher-Price, 217 F.R.D. at 334. Likewise, this Court finds Dr. Veres’ charge of $450 per hour for 1.25 hours of gathering and printing documents unreasonable. Dr. Veres is entitled to bill Defendant at a reduced hourly rate for these clerical services but not at the same rate as his expert services. The Court will therefore order Defendant to pay Dr. Veres half of his hourly rate, or $200 per hour, for the time he spent preparing documents.2
C. Travel Time The issue of whether the “reasonable fee” provision in Federal Rule of Civil Procedure 26(b)(4)(C) includes travel time and expenses is also in dispute. FED. R. CIV. P. 26(b)(4)(C). Defendant argues that it should not be burdened by the Plaintiffs’ choice of an expert from Alabama. (Def.’s Opp’n at 5.) However, this Circuit includes travel time and expenses in the reasonable fee that experts are entitled to receive from the party requesting the deposition. Haarhuis v. Kunnan Enters., Ltd., 177 F.3d 1007, 1015-1016 (D.C. Cir. 1999) (affirming bankruptcy court’s finding that expert should be paid “portal-to-portal”); Marine Petroleum, 641 F.2d at 990 (finding incidental expenses compensable). Courts in other circuits agree that an
2
As explained in Part II.A, supra, the Court considers $400 per hour to be Dr. Veres’ reasonable hourly rate.
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expert should be reimbursed for reasonable travel costs. Rogers v. Penland, 232 F.R.D. 581, 582 (E.D. Tex. 2005); Solvent Chem., 210 F.R.D. at 472.
Defendant’s claim of burden because Plaintiffs’ expert lives or works in Alabama ignores the election made by Defendant to depose him in the District of Columbia. The less expensive alternative would have been to depose Dr. Veres by video conference, thereby eliminating all of his travel costs. The oft raised argument by a party taking a deposition that it needs to closely observe and monitor the deponent’s demeanor to assess how he or she will appear to a jury does not apply with nearly the same force to a seasoned expert such as Dr. Veres. Having made the decision to depose him in the District of Columbia, Defendant cannot now avoid paying for his travel costs.
A charge of half Dr. Veres’ reasonable rate, or $200 per hour, for 12.25 hours of travel time to and from Montgomery, Alabama and Washington, D.C. appears reasonable under the circumstances. Additionally, Dr. Veres’ lodging, transportation, and food expenses while in Washington, D.C. all appear to be reasonable. Finally, the Court is not inclined to re-examine the cost of Dr. Veres’ standard fare plane tickets, as the market price will be presumed to be reasonable. Accordingly, the Court will order Defendant to pay Dr. Veres $2,450 for his travel time and $1,888.17 for his travel expenses.
D. Expenses and Attorneys Fees Plaintiffs seek to recover attorney’s fees and expenses for the preparation of their motion to compel and their reply to Defendant’s opposition. (Pls.’ Mot. at 12-13.) Federal Rule of Civil Procedure 37 provides: If the motion [to compel] is granted – or if the disclosure or requested discovery is provided after the motion was filed – the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the
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party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(a)(5)(A). Given Dr. Veres’ high hourly rate, Defendant’s opposition to pay the full balance of his invoice for charges related to the deposition was substantially justified. Accordingly, the Court will deny Plaintiffs’ request for attorney’s fees and expenses. III. Conclusion For the foregoing reasons, it is this 4th day of June, 2009, hereby ORDERED that Plaintiffs’ Motion to Compel Payment of Expert’s Reasonable Fee for Defendant’s Deposition [128] is granted in part and denied in part; and it is further ORDERED that Defendant shall pay Plaintiffs’ expert $400 per hour for 5.5 hours of deposition time, or $2,200. Defendant shall also pay Plaintiffs’ expert $400 per hour for 2.5 hours of time reviewing documents and $200 per hour for 1.25 hours of time preparing documents, or a total of $1,250; and it is further ORDERED that Defendant shall pay Plaintiffs’ expert $200 per hour for 12.25 hours of travel time, or $2,450. Defendant shall also pay Plaintiffs’ expert $1,888.17 for travel expenses.
/s/ ALAN KAY UNITED STATES MAGISTRATE JUDGE
8

 
 Case 1:01-cv-02361-JSG Document 156 Filed 09/01/10 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RENAE MARABLE, ET AL.,

)

)

Plaintiffs,

)

)

vs.

)

)

DISTRICT HOSPITAL PARTNERS, )

L.P.,

)

)

Defendants.

)

CASE NO. 1:01CV02361 JUDGE JAMES S. GWIN ORDER

Upon representation of counsel that the above-captioned case has been settled between the parties, IT IS ORDERED that the docket be marked, "settled and dismissed with prejudice.”
Any subsequent order setting forth different terms and conditions relative to the settlement and dismissal of the within action shall supersede the within order.
FURTHER, the Court retains continuing jurisdiction to resolve disputes concerning the memorialization of this settlement agreement. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).

Dated: September 1, 2010

s/ James S. Gwin JUDGE JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

 
 Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 1 of 19
CLOSED,JURY,TYPE−H
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:01−cv−02361−JSG

MARABLE et al v. DISTRICT HOSPITAL PARTNERS, L.P. Assigned to: Judge James S. Gwin Case in other court: USCA, 09−07036 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/13/2001 Date Terminated: 09/01/2010 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

RENAE MARABLE

represented by Micah Salb LIPPMAN, SEMSKER &SALB, LLC 7979 Old Georgetown Road Suite 1100 Bethesda, MD 20814−6204 301−656−6905 Fax: 301−656−6906 Email: msalb@lsslawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza GWEN W. D'SOUZA, ESQ. 7979 Old Georgetown Road Suite 1100 Bethesda, MD 20814 (301) 452−1888 Fax: (301) 656−6905 Email: gwenwdsouza@yahoo.com TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz LIPPMAN SEMSKER &SALB, LLC 7979 Old Georgetown Road Suite 1100 Bethesda, MD 20814 (301) 656−6905 Fax: (301) 656−6906 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff JANETTE ADAMS

represented by Micah Salb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff KATHLEEN MCDONALD

represented by

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 2 of 19

Micah Salb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff ZAKIYYAH MUHAMMAD

represented by Micah Salb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
CAROLYN MURPHY TERMINATED: 05/29/2007

represented by Micah Salb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Plaintiff NANCY PRINCE

represented by Micah Salb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
MONICA BROOKS TERMINATED: 03/11/2009

represented by Micah Salb (See above for address) LEAD ATTORNEY

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 3 of 19

ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
TRACEE TAYLOR on behalf of themselves and all others similarly situtated TERMINATED: 03/11/2009

represented by Micah Salb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwenlynn Whittle D'Souza (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Mary E. Kuntz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
DISTRICT HOSPITAL PARTNERS, L.P. doing business as GEORGE WASHINGTON UNIVERSITY HOSPITAL

represented by Charles B. Wayne DLA PIPER LLP (US) 500 8th Street, N.W. Washington, DC 20004 (202) 799−4253 Fax: (202) 799−5253 Email: charles.wayne@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregg S. Avitabile PIPER RUDNICK, LLP 1200 19th Street, NW Washington, DC 20036 (202) 861−3900 Email: gregg.avitabile@piperrudnick.com TERMINATED: 05/07/2004 LEAD ATTORNEY
Dianne Rose LaRocca DLA PIPER RUDNICK GRAY CARY US 1200 19th Street, NW Washington, DC 20008 (202) 861−6687 Email: dianne.larocca@dlapiper.com TERMINATED: 06/24/2008 ATTORNEY TO BE NOTICED
Elisha Anne King DLA PIPER LLP (US) 500 8th Street, NW Washington, DC 20004

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 4 of 19
(202) 799−4254 Fax: (202) 799−5254 Email: elisha.king@dlapiper.com ATTORNEY TO BE NOTICED
Jamie M. Konn DLA PIPER LLP (US) 1201 West Peachtree Street Suite 2800 Atlanta, GA 30309 (202) 531−6103 Email: jamie.konn@dlapiper.com ATTORNEY TO BE NOTICED
Jody Marie Grippo DLA PIPER RUDNICK GRAY CARY US LLP 1200 Nineteenth Street, NW Washington, DC 20036 (202) 861−3900 TERMINATED: 06/24/2008 ATTORNEY TO BE NOTICED
Roxane Sokolove Marenberg PIPER RUDNICK, LLP Labor and Employment 1200 19th Street, NW Washington, DC 20036−2412 (202) 861−3900 Fax: (202) 689−7415 TERMINATED: 12/01/2005 ATTORNEY TO BE NOTICED

Date Filed 11/13/2001 11/13/2001
01/11/2002 01/17/2002 01/22/2002 02/04/2002 02/05/2002 02/14/2002

# Docket Text
SUMMONS (1) Issued as to DISTRICT HOSPITAL PARTNERS, L.P. (cdw, ) (Entered: 03/05/2002)
1 COMPLAINT against DISTRICT HOSPITAL PARTNERS, L.P. ( Filing fee $150 ). Filed by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (cdw, ) (Entered: 03/05/2002)
2 AMENDED COMPLAINT. Filed by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (cdw, ) (Entered: 03/05/2002)
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DISTRICT HOSPITAL PARTNERS, L.P. served on 1/14/2002, answer due 2/4/2002 (cdw, ) (Entered: 03/05/2002)
4 MOTION to designate case for electronic case filing by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (cdw, ) (Entered: 03/05/2002)
5 MOTION to Dismiss the first amended complaint or in the alternative, MOTION to Strike 2 by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibits)(cdw, ) (Entered: 03/05/2002)
6 MOTION to Withdraw 5 (PARTIALLY) motion to dismiss by DISTRICT HOSPITAL PARTNERS, L.P.. (cdw, ) (Entered: 03/05/2002)
9 Consent MOTION for Extension of Time to File plaintiffs' opposition to defendant's motion to dismiss or, in the alternative to strike by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (cdw, ) (Entered:

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 5 of 19

02/19/2002 02/19/2002
03/05/2002
03/06/2002
03/11/2002 03/13/2002 03/19/2002 03/26/2002 04/05/2002 08/26/2002 11/22/2002 01/14/2003 02/20/2003 03/03/2003 03/06/2003 04/09/2003 05/02/2003
05/08/2003

03/05/2002)
7 ORDER granting Motion to designate case for electronic filing 4 (td, ) (Entered: 03/05/2002)
8 ORDER that consented motion for an enlargement of time to file plaintiffs' opposition to defendant's motion to dismiss or, opposition to defendant's motion to dismiss, or in the alternative, to strike is granted and ORDERED that plaintiff's have until 2/20/02 to file opposition to defendant's motion to dismiss and defendant has until 3/11/02 to file their response.. Signed by Judge Henry H. Kennedy, Jr. on 2/19/02. (td, ) (Entered: 03/05/2002)
10 Memorandum in Opposition to Motion re 5 Defendant's Motion to Dismiss filed by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Attachments: # 1 Exhibit 2 − Campbell v. Dayton# 2 Exhibit 3 − Burrell v. Univ. of Maine)(Salb, Shannon) (Entered: 03/05/2002)
11 NOTICE re 10 of filing EXHIBIT ONE to plaintiffs' opposition to defendant's motion to dismiss by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE (cdw, ) (Entered: 03/09/2002)
12 REPLY in Support of Motion re 6 filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Avitabile, Gregg) (Entered: 03/11/2002)
13 PRELIMINARY ELECTRONIC CASE FILING ORDER . Signed by Judge Henry H. Kennedy, Jr. on March 13, 2002. (FL, ) (Entered: 03/13/2002)
Calendar Entry, Set Motion Hearing: Hearing on defendants motion to dismiss set for 3/28/2002 10:00 AM, each side shall be allotted 15 minutes to present their argument before Judge Henry H. Kennedy, Jr.. (dcn, ) (Entered: 03/19/2002)
Calendar Entry Motions hearing reset for 4/5/2002 01:30 PM before Judge Henry H. Kennedy, Jr.. (dcn, ) (Entered: 03/26/2002)
Minute Entry: Motion Hearing re 5 held on 4/5/2002 before Judge Henry H. Kennedy, Jr. taken under advisement (Court Reporter Jackie Wood (Miller Reporting).) (dcn, ) (Entered: 08/26/2002)
Minute Entry: Motions 9 , 4 terminated. () (dcn, ) (Entered: 08/26/2002)
14 NOTICE of Change of Address by Shannon Micah Salb (Salb, Shannon) (Entered: 11/22/2002)
15 NOTICE by DISTRICT HOSPITAL PARTNERS, L.P. (Avitabile, Gregg) (Entered: 01/14/2003)
16 Memorandum Opinion and Order granting in part and denying in part defendant's motion to dismiss. Signed by Judge Henry H. Kennedy on February 20, 2003. (FL, ) (Entered: 02/20/2003)
17 ANSWER to Amended Complaint by DISTRICT HOSPITAL PARTNERS, L.P..(Avitabile, Gregg) (Entered: 03/03/2003)
Calendar Entry, Set Hearing: Initial Scheduling Conference set for 5/2/2003 09:45 AM in Courtroom 5 before Henry H. Kennedy. (dcn, ) (Entered: 03/06/2003)
18 REPORT of Rule 26(f) Planning Meeting. (Salb, Shannon) (Entered: 04/09/2003)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Scheduling Conference held on 5/2/2003. Plaintiff to submit order incorporating certain deadlines by 5/7/03. Status Conference set for 11/14/2003 09:30 AM in Courtroom 14 before Henry H. Kennedy. (Court Reporter Dolores Byers.) (dcn, ) (Entered: 05/02/2003)
19 Joint MOTION for Protective Order by DISTRICT HOSPITAL PARTNERS, L.P., RENAE MARABLE. (Attachments: # 1 # 2)(Avitabile, Gregg) (Entered: 05/08/2003)

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05/09/2003 05/14/2003 05/14/2003
08/12/2003
08/13/2003 08/13/2003 08/15/2003 11/03/2003 11/06/2003 11/19/2003 11/20/2003 01/05/2004
01/06/2004
01/16/2004 01/22/2004

20 Scheduling Order re Minute Entry entered May 2, 2003. Signed by Judge Henry H. Kennedy on May 9, 2003. (FL, ) Modified on 5/14/2003 (FL, ). (Entered: 05/09/2003)
21 Order re 19 granting the parties' joint motion for a protective order, annexed Exhibit A "Confidentiality Agreement" form. Signed by Judge Henry H. Kennedy on May 14, 2003. (FL, ) (Entered: 05/14/2003)
Notice: At the conclusion of this proceeding and any and all appeals relating thereto, or upon such earlier order as the court may enter pursuant to a duly noticed motion and hearing, the Clerk of the Court shall return to each party all confidential information that has been filed with the court by that party. (FL, ) (Entered: 05/14/2003)
22 MOTION to Amend/Correct the First Amended Complaint by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Attachments: # 1 Proposed Second Amended Complaint# 2 Text of Proposed Order)(Salb, Shannon) (Entered: 08/12/2003)
Minute order re 22 granting plaintiffs' consented motion to amend first amended complaint. The plaintiffs' "Second Amended Complaint and Jury Demand" is deemed filed. Signed by Judge Henry H. Kennedy on August 13, 2003. Official paperless order(FL, ) (Entered: 08/13/2003)
23 SECOND AMENDED COMPLAINT against DISTRICT HOSPITAL PARTNERS, L.P. , filed by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE.(mpt, ) (Entered: 08/15/2003)
24 ANSWER to Amended Complaint by DISTRICT HOSPITAL PARTNERS, L.P..(Avitabile, Gregg) (Entered: 08/15/2003)
Calendar Entry, Reset Hearings: Status Conference of 11/14/2003 reset for 11/20/2003 02:15 PM in Courtroom 14 before Judge Henry H. Kennedy. (dcn, ) (Entered: 11/03/2003)
25 Consent MOTION for Order Reschedule Status Conference by DISTRICT HOSPITAL PARTNERS, L.P.. (Avitabile, Gregg) (Entered: 11/06/2003)
ORDER granting 25 . The clerk shall reschedule the status conference to take place in January 2004. (Kennedy, Henry) (Entered: 11/19/2003)
NOTICE of Hearing: Status Conference of 11/20/2003 reset for 1/30/2004 11:00 AM in Courtroom 14 before Judge Henry H. Kennedy. (zdcn, ) (Entered: 11/20/2003)
26 Joint MOTION for Extension of Time to Complete Discovery and Adjust Following Dates by JANETTE ADAMS, DISTRICT HOSPITAL PARTNERS, L.P., RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Salb, Shannon) (Entered: 01/05/2004)
MINUTE ORDER granting 26 Motion for Extension of Time to Complete Discovery. The court's scheduling order is amended as proposed by the parties and set forth in the proposed order that accompanies their joint motion. Further, the presently set status hearing is cancelled and shall be rescheduled by the clerk to take place in May 2004, when the business of the court permits. SO ORDERED. (Kennedy, Henry) (Entered: 01/06/2004)
NOTICE of Hearing: Status Conference set for 5/28/2004 09:45 AM in Courtroom 14 before Judge Henry H. Kennedy. (zdcn, ) (Entered: 01/16/2004)
27 MOTION for Order to Show Cause To Not Be Held in Contempt by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Salb, Shannon) (Entered: 01/22/2004)

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03/22/2004 05/11/2004 05/12/2004 05/28/2004 05/28/2004 06/25/2004
07/19/2004 07/19/2004 07/20/2004 07/20/2004 07/20/2004
07/20/2004
08/09/2004 08/10/2004

28 Order to Show Cause re 27 . Signed by Judge Henry H. Kennedy, Jr., on March 22, 2004. (FL, ) (Entered: 03/22/2004)
29 NOTICE of Appearance by Roxane Sokolove Marenberg on behalf of DISTRICT HOSPITAL PARTNERS, L.P. (Marenberg, Roxane) (Entered: 05/11/2004)
30 Unopposed MOTION for Extension of Time to File Motion for Class Certification by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Salb, Shannon) (Entered: 05/12/2004)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Status Conference held on 5/28/2004. Further Status Conference set for 10/8/2004 10:30 AM in Courtroom 14 before Judge Henry H. Kennedy. (Court Reporter Delores Byers.) (zrew, ) (Entered: 05/28/2004)
MINUTE ORDER granting 30 Motion for Extension of Time to File Motion for Class Certification. (Kennedy, Henry) (Entered: 05/28/2004)
31 MOTION to Certify Class by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 5A# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8)(nmw, ) (Entered: 06/28/2004)
32 ENTERED IN ERROR.....Consent MOTION for Extension of Time to File an Opposition to Plaintiffs' Motion for Class Certification by DISTRICT HOSPITAL PARTNERS, L.P.. (Marenberg, Roxane) Modified on 7/20/2004 (nmw, ). (Entered: 07/19/2004)
33 NOTICE by DISTRICT HOSPITAL PARTNERS, L.P. Entry of Appearance of Jody Gardner on Behalf of District Hospital Partners, L.P. (Marenberg, Roxane) (Entered: 07/19/2004)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 32 was entered in error and counsel was instructed to refile said pleading. (nmw, ) (Entered: 07/20/2004)
34 Consent MOTION for Extension of Time to File an Opposition to Plaintiffs' Motion for Class Certification by DISTRICT HOSPITAL PARTNERS, L.P.. (Marenberg, Roxane) Modified on 7/20/2004 (jf, ). (Entered: 07/20/2004)
Minute order granting 34 consented motion for an enlargement of time to file defendant's opposition to plaintiffs' motion for class certification. Responses due by 8/9/2004, and replies due by 9/9/2004 and that subsequent dates also be adjusted accordingly. Signed by Judge Henry H. Kennedy, Jr., on July 20, 2004. Official paperless order (FL, ) Modified on 7/20/2004 (FL, ). (Entered: 07/20/2004)
Adjusted Deadlines 34 : The defendant's opposition to plaintiffs' motion for class certification shall be filed by 8/9/04. The plaintiff's reply shall be filed 9/9/04. Any experts, other than purely responsive experts, shall be identified and Rule 26(a)(2) reports filed, one month after the last day of any class certification evidentiary hearing and/or arguments (or one month after the time that the court states that no such hearing or arugment will occur). Responsive exeprt disclosures shall be filed 3 months after initial expert reports are filed; any summary judgment motion, by either party, shall be filed 60 days after the close of merits discovery; summary judgment opposition briefs shall be filed 30 days after summary judgment motions are filed; and summary judgment reply brief shall be filed 30 days after summary judgment oppositions are filed. (FL, ) (Entered: 07/20/2004)
35 ENTERED IN ERROR.....Memorandum in opposition to motion re 31 MOTION to Certify Class Defendant's Opposition to Plaintiffs' Motion for Class Certification filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Marenberg, Roxane) Modified on 8/10/2004 (nmw, ). (Entered: 08/09/2004)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 35 was entered in error and counsel was instructed to refile said pleading. (nmw, ) (Entered: 08/10/2004)

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08/10/2004 09/07/2004
09/08/2004 09/09/2004 09/10/2004 10/01/2004 10/04/2004 10/06/2004 10/22/2004 10/25/2004 12/16/2004 01/11/2005 01/12/2005
01/28/2005 03/10/2005 03/16/2005 08/10/2005

36 Memorandum in opposition to motion re 31 MOTION to Certify Class filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit)(Marenberg, Roxane) (Entered: 08/10/2004)
37 ENTERED IN ERROR..... MOTION for Extension of Time to File Response/Reply as to 36 Memorandum in Opposition to Motion for Class Certification by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Salb, Shannon) Modified on 9/8/2004 (nmw, ). (Entered: 09/07/2004)
NOTICE OF CORRECTED DOCKET ENTRY. Document No. 37 was entered in error and counsel was instructed to refile said pleading. (nmw, ) (Entered: 09/08/2004)
38 Joint MOTION to Stay All Proceedings by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Salb, Shannon) (Entered: 09/09/2004)
MINUTE ORDER granting 38 Motion to Stay for 30 days. The parties shall advise the court no later than October 10, 2004, as proposed in their motion to stay. (Kennedy, Henry) (Entered: 09/10/2004)
39 Joint MOTION to Stay All Proceedings by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Salb, Shannon) (Entered: 10/01/2004)
MINUTE ORDER granting 39 Motion to Stay and incorporating directives contained in the proposed order accompanying the motion. (Kennedy, Henry) (Entered: 10/04/2004)
Set/Reset Hearings: Status Conference set for 10/08/2004 at 10:30 AM is OFF, a stay having been granted, and reset for 12/17/2004 at 09:45 AM in Courtroom 14 before Judge Henry H. Kennedy. (rew, ) (Entered: 10/06/2004)
40 Joint MOTION to Stay All Proceedings by JANETTE ADAMS, RENAE MARABLE, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY, NANCY PRINCE. (Salb, Shannon) (Entered: 10/22/2004)
Minute order granting 40 the parties' joint motion to stay. Signed by Judge Henry H. Kennedy, Jr., on October 25, 2004. Official paperless order (FL, ) (Entered: 10/25/2004)
Set/Reset Hearings: Status Conference set for 12/17/2004 at 9:45 AM is OFF and reset for 2/2/2005 at 09:45 AM in Courtroom 14 before Judge Henry H. Kennedy, stay entered 10/25/2004. (rew, ) (Entered: 12/16/2004)
41 Joint MOTION to Stay All Proceedings by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Salb, Shannon) (Entered: 01/11/2005)
Order granting 41 the parties' joint motion to stay. All proceedings are stayed until March 10, 2005. In the event this matter is not settled, the parties shall make further report to the court. Signed by Judge Henry H. Kennedy, Jr., on January 12, 2005. Official paperless order (FL, ) (Entered: 01/12/2005)
Remark by the Clerk: The status call set for 2/2/2005 at 9:45 AM is OFF in light of the Court's order of 1/12/2005 staying case until 3/10/2005. (rew, ) (Entered: 01/28/2005)
42 Joint MOTION to Stay by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Salb, Shannon) (Entered: 03/10/2005)
Minute order granting 42 the parties' joint motion to stay. Signed by Judge Henry H. Kennedy, Jr., on March 16, 2005. (FL, ) Modified on 3/16/2005 (FL, ). Modified on 3/16/2005 (FL, ). Official paperless order (Entered: 03/16/2005)
43 Consent MOTION for Extension of Time to File Status Report by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Text of Proposed

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 9 of 19

08/11/2005
08/11/2005 08/19/2005 08/23/2005
10/06/2005 10/27/2005 10/27/2005 11/18/2005 11/23/2005 11/23/2005
11/27/2005 12/01/2005 12/01/2005 01/30/2006

Order)(Marenberg, Roxane) (Entered: 08/10/2005)
Minute order granting 43 the parties' consent motion for one−week extension. All proceedings are stayed for an additional week, until August 17, 2005. In the event that this matter is not settled, the parties shall make further report to this court at that time. Signed by Judge Henry H. Kennedy, Jr., on August 11, 2005. Official paperless order (FL, ) (Entered: 08/11/2005)
Erratum 43 The minute order entered on August 11, 2005, should be corrected to state: All proceedings are stayed for an additional week, until August 18, 2005. In the event that this matter is not settled, the parties shall make further report to this court at that time. (FL, ) (Entered: 08/11/2005)
44 Joint MOTION to Stay (one month extension of current stay) by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1)(Marenberg, Roxane) (Entered: 08/19/2005)
Minute order granting 44 the parties' joint motion for one month extension of stay. All proceedings are stayed for an additional one month until September 16, 2005. In the event this matter is not settled, the parties shall make further report to the court at that time. Signed by Judge Henry H. Kennedy, Jr., on August 23, 2005. Official paperless order (FL, ) (Entered: 08/23/2005)
45 STATUS REPORT by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Salb, Shannon) (Entered: 10/06/2005)
MINUTE ORDER: Upon consideration of Plaintiffs' status report it is hereby ordered that plaintiffs shall file their reply to defendant's opposition to the plaintiffs'motion for class certification by no later than November 18, 2005. (Kennedy, Henry) (Entered: 10/27/2005)
Set/Reset Deadlines: Plaintiff's Reply is due by 11/18/2005 to Defendant's opposition to Plaintiffs motion for Class Certification. (rew, ) (Entered: 10/27/2005)
46 REPLY to opposition to motion re 31 Motion for Class Certification filed by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Attachments: # 1 Exhibit 1, Veres Report)(Salb, Micah) (Entered: 11/18/2005)
47 NOTICE of Appearance by Roxane Sokolove Marenberg on behalf of DISTRICT HOSPITAL PARTNERS, L.P. (Marenberg, Roxane) (Entered: 11/23/2005)
48 MOTION for Leave to File Supplemental Memorandum of Law In Support of Opposition To Plaintiffs' Motion for Class Certification by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Leave to File Supplemental Opposition)(Marenberg, Roxane) (Entered: 11/23/2005)
49 Memorandum in opposition to motion re 48 filed by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Salb, Micah) (Entered: 11/27/2005)
50 REPLY to opposition to motion re 48 Motion for Leave to File a Supplemental Memorandum of Law in Support of its Opposition to Plaintiffs' Motion for Class Certification filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Wayne, Charles) (Entered: 12/01/2005)
51 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT HOSPITAL PARTNERS, L.P.. Attorney Roxane Sokolove Marenberg terminated. (Wayne, Charles) (Entered: 12/01/2005)
Minute order granting 48 defendant's motion for leave to file a supplemental memorandum of law in opposition to plaintiffs' motion for class certification. Defendant has up to thirty days from the date of this minute order to file its supplemental memorandum of law in opposition to plaintiffs' motion for class certification. Signed by Judge Henry H. Kennedy, Jr., on January 30, 2006. Official

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03/01/2006 03/09/2006 03/30/2006 03/31/2006 03/31/2006 05/05/2006
08/31/2006 08/31/2006 09/05/2006 09/14/2006
09/19/2006 09/26/2006 09/27/2006

paperless order (FL, ) (Entered: 01/30/2006)
52 SUPPLEMENTAL MEMORANDUM to Opposition to Plaintiffs' Motion for Class Certification filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Text of Proposed Order # 4 case)(Gardner, Jody) (Entered: 03/01/2006)
53 NOTICE of Appearance by Dianne Rose LaRocca on behalf of DISTRICT HOSPITAL PARTNERS, L.P. (LaRocca, Dianne) (Entered: 03/09/2006)
54 Unopposed MOTION for Leave to File Response to Sur−Reply by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Salb, Micah) (Entered: 03/30/2006)
Minute order granting 54 plaintiffs' consented to motion for leave to file a response to defendant's supplemental memorandum. Plaintiffs have up to and including May 5, 2006, within which to file a response to defendant's sur−reply. Signed by Judge Henry H. Kennedy, Jr., on March 31, 2006. Official paperless order (FL, ) (Entered: 03/31/2006)
Set/Reset Deadlines: Plaintiff's Responses to defendant's surreply due by 5/5/2006 (rew, ) (Entered: 03/31/2006)
55 RESPONSE to 52 Defendant's Supplemental Opposition to Plaintiffs' Motion for Class Certification filed by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Attachments: # 1 Exhibit 1 (Ridley Report)# 2 Exhibit 2 (Marable Int.)# 3 Exhibit 3 (Adams Int.)# 4 Exhibit 4 (Prince In.t))(Salb, Micah) Modified on 5/8/2006 (lc, ). (Entered: 05/05/2006)
56 Memorandum Opinion and Order. Signed by Judge Henry H. Kennedy, Jr., on August 31, 2006. (FL, ) (Entered: 08/31/2006)
57 MOTION for Leave to File Amended Complaint by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Attachments: # 1 Proposed Amended Complaint)(Salb, Micah) (Entered: 08/31/2006)
58 WITHDRAWN pursuant to Notice filed 10/6/2006.....First MOTION for Joinder by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) Modified on 10/10/2006 (lc, ). (Entered: 09/05/2006)
59 Memorandum in opposition to re 57 MOTION for Leave to File Amended Complaint filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit August 31, 2006 Memorandum Opinion and Order# 2 Exhibit Memo of Points and Authorities In Support of Plaintiffs' Opposition to Defendant's Motion to Dismiss# 3 Exhibit February 20, 2003 Memorandum Opinion and Order# 4 Exhibit April 2, 1999 Letter to EEOC# 5 Exhibit Augutst 10, 2001 Notice of Right to Sue# 6 Exhibit Partial Withdrawal of Motion to Dismiss# 7 Unreported Case# 8 Unreported Case# 9 Unreported Case)(Gardner, Jody) (Entered: 09/14/2006)
60 Memorandum in opposition to re 58 First MOTION for Joinder Leave to Intervene (Sakyi and Lambert) filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Text of Proposed Order)(Gardner, Jody) (Entered: 09/19/2006)
61 MOTION for Extension of Time to File Response/Reply as to 58 First MOTION for Joinder, 57 MOTION for Leave to File Amended Complaint by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Salb, Micah) (Entered: 09/26/2006)
62 NOTICE re Defendant's Consent to 61 Motion to Enlarge Time by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY 60 Memorandum in Opposition filed by DISTRICT HOSPITAL PARTNERS, L.P.,, 59 Memorandum in Opposition,, filed by DISTRICT HOSPITAL PARTNERS, L.P.,. (Salb, Micah)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 11 of 19

09/28/2006
09/28/2006 10/06/2006
10/06/2006 05/29/2007 05/29/2007 06/15/2007
07/09/2007 07/16/2007 07/16/2007 08/03/2007
10/05/2007 10/18/2007 10/18/2007
10/19/2007

Modified on 9/28/2006 (zlc, ). (Entered: 09/27/2006)
Minute order granting 61 plaintiffs' motion to enlarge the time to reply to defendant's opposition to plaintiffs' motion for leave to join and for leave to file a fourth amended complaint. Plaintiffs have up to and including October 6, 2006, to file reply briefs. Signed by Judge Henry H. Kennedy, Jr., on September 28, 2006. Official paperless order (FL, ) (Entered: 09/28/2006)
Reset Deadlines: Plaintiff's reply to defendant's opposition is due by 10/6/06. Replies due by 10/6/2006. (tj, ) (Entered: 09/28/2006)
63 REPLY to opposition to motion re 57 MOTION for Leave to File Amended Complaint filed by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Salb, Micah) (Entered: 10/06/2006)
64 NOTICE OF WITHDRAWAL OF MOTION by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD, CAROLYN MURPHY re 58 First MOTION for Joinder (Salb, Micah) (Entered: 10/06/2006)
65 ORDER granting 57 Motion to Intervene. (Kennedy, Henry) (Entered: 05/29/2007)
66 THIRD AMENDED COMPLAINT against DISTRICT HOSPITAL PARTNERS, L.P. filed by MONICA BROOKS, TRACEE TAYLOR, NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD.(lc, ) (Entered: 05/30/2007)
67 ANSWER to Amended Complaint by DISTRICT HOSPITAL PARTNERS, L.P.. Related document: 66 Amended Complaint filed by ZAKIYYAH MUHAMMAD, JANETTE ADAMS, MONICA BROOKS, NANCY PRINCE, KATHLEEN MCDONALD, TRACEE TAYLOR, RENAE MARABLE.(Grippo, Jody) (Entered: 06/15/2007)
Set Hearings: Status Conference is set for 8/3/2007 @ 12:15 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 07/09/2007)
NOTICE: Status conference currently scheduled for Friday, August 3, 2007 is OFF. New date to be rescheduled. (tj ) (Entered: 07/16/2007)
NOTICE: Cancellation of status conference shall be disregarded. Status conference will be held on 8/3/2007 @ 12:15 PM in Courtroom 27A before Judge Henry H. Kennedy. (tj) (Entered: 07/16/2007)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Status Conference held on 8/3/2007. Parties to file a joint status report by 10/5/2007. Status Conference is set for 10/19/2007 @ 11:00 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Annie Shaw.) (tj ) (Entered: 08/06/2007)
68 STATUS REPORT by DISTRICT HOSPITAL PARTNERS, L.P.. (Grippo, Jody) (Entered: 10/05/2007)
69 Joint MOTION for Hearing to be canceled and status conference reset by DISTRICT HOSPITAL PARTNERS, L.P. (Attachments: # 1 Text of Proposed Order Proposed order to reset hearing)(Grippo, Jody) (Entered: 10/18/2007)
MINUTE ORDER granting 69 joint motion to continue the Octboer 19, 2007, status hearing. The clerk of the court shall reschedule the hearing on a day as soon after December 18, 2007, as the business of the court permits. Counsel should not expect any future request for a continuance of the status hearing to be granted. (Kennedy, Henry) (Entered: 10/18/2007)
Reset Hearings: Status Conference currently scheduled for 10/19/07 is OFF and rescheduled for 1/4/2008 @ 09:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 10/19/2007)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 12 of 19

10/19/2007 01/04/2008 01/11/2008 01/15/2008 05/15/2008 05/16/2008 05/29/2008 06/02/2008
06/02/2008 06/16/2008 06/23/2008 06/24/2008 07/07/2008 07/07/2008
07/09/2008 07/10/2008

70 NOTICE of Appearance by Gwenlynn Whittle D'Souza on behalf of all plaintiffs (D'Souza, Gwenlynn) (Entered: 10/19/2007)
Minute Entry for proceedings held before Judge Henry H. Kennedy : Status Conference held on 1/4/2008. Proposed briefing scheduled due by 1/11/2008; Next status conference set for 7/11/2008 @ 11:30 AM in Courtroom 27A before Judge Henry H. Kennedy. (Court Reporter Annie Shaw.) (tj ) (Entered: 01/04/2008)
71 JOINT PROPOSED CASE SCHEDULING ORDER by DISTRICT HOSPITAL PARTNERS, L.P.. (Grippo, Jody) Modified on 1/14/2008 (lc, ). (Entered: 01/11/2008)
72 SCHEDULING ORDER. See attached order for details. Signed by Judge Henry H. Kennedy, Jr. on January 15, 2008. (NP) (Entered: 01/15/2008)
73 MOTION for Extension of Time to Serve Expert Report by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Salb, Micah) (Entered: 05/15/2008)
MINUTE ORDER denying without prejudice 73 Plaintiffs' Motion for Enlargement of Time to File Expert report because plaintiff did not confer with opposing counsel as required by Local Civil Rule 7(m). Signed by Judge Henry H. Kennedy, Jr. on May 16, 2008. (NP) (Entered: 05/16/2008)
74 Consent MOTION for Extension of Time to File Expert Reports by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Salb, Micah) (Entered: 05/29/2008)
MINUTE ORDER granting 74 Plaintiffs' Motion for Enlargement of Time to File Expert Report. Accordingly, plaintiffs' expert report shall be served on or before June 16, 2008, and the parties' responsive expert disclosures shall be served on or before September 15, 2008. Signed by Judge Henry H. Kennedy, Jr. on June 2, 2008. (NP) (Entered: 06/02/2008)
Plaintiffs' Rule 26(a)(2) report due by June 16, 2008. Signed by Judge Henry H. Kennedy, Jr. on June 2, 2008. (NP) (Entered: 06/02/2008)
75 MOTION to Certify Class by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Exhibit Expert Report, # 2 Exhibit Salb Declaration)(Salb, Micah) (Entered: 06/16/2008)
NOTICE of Hearing: Status Conference currently scheduled for Friday, July 11, 2008 @ 11:30am is rescheduled for Thursday, July 10, 2008 @ 10:45 AM in Courtroom 27A before Judge Henry H. Kennedy. (tj ) (Entered: 06/23/2008)
76 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT HOSPITAL PARTNERS, L.P.. Attorney Jody Marie Grippo and Dianne Rose LaRocca terminated. (nmw, ) (Entered: 06/24/2008)
77 Consent MOTION for Order to Reschedule Status Conference by DISTRICT HOSPITAL PARTNERS, L.P. (King, Elisha) (Entered: 07/07/2008)
MINUTE ORDER granting 77 Defendant's Consent Motion to Reschedule Status Conference. The motion to continue the July 10, 2008, hearing is granted and shall be rescheduled by the clerk to take place after the court rules on plaintiffs' renewed motion for class certification 75 . Signed by Judge Henry H. Kennedy, Jr. on July 7, 2008. (NP) (Entered: 07/07/2008)
78 Consent MOTION for Extension of Time to File Response/Reply to Plaintiffs' Renewed Motion for Class Certification by DISTRICT HOSPITAL PARTNERS, L.P. (King, Elisha) (Entered: 07/09/2008)
MINUTE ORDER granting Defendant's Consent Motion for Extension of Time to File Opposition to Plaintiffs' Renewed Motion for Class Certification. Accordingly, defendant's opposition is due on July 22, 2008, and plaintiffs' reply is due on August 15, 2008. Signed by Judge Henry H. Kennedy, Jr. on July 10, 2008. (NP)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 13 of 19

07/22/2008 07/22/2008 08/15/2008 08/15/2008 08/15/2008 08/15/2008 08/22/2008 08/25/2008 09/11/2008 09/18/2008 11/13/2008 11/14/2008 11/25/2008 11/25/2008 11/25/2008

(Entered: 07/10/2008)
79 NOTICE of Appearance by Jamie M. Konn on behalf of DISTRICT HOSPITAL PARTNERS, L.P. (Konn, Jamie) (Entered: 07/22/2008)
80 Memorandum in opposition to re 75 MOTION to Certify Class filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Affidavit Karen Frazier, # 2 Exhibit Report of Dr. Lance Seberhagen, # 3 Text of Proposed Order)(Konn, Jamie) (Entered: 07/22/2008)
81 Consent MOTION for Extension of Time to File Response/Reply as to 75 MOTION to Certify Class by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Salb, Micah) (Entered: 08/15/2008)
82 MOTION to Withdraw as Attorney by Ms. D'Souza by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Salb, Micah) (Entered: 08/15/2008)
MINUTE ORDER granting 81 Plaintiffs' Consent Motion for Enlargement of Time to File Reply to Defendant's Opposition to Plaintiffs' Renewed Motion for Class Certification. Accordingly, plaintiffs' reply is due on August 22, 2008. Signed by Judge Henry H. Kennedy, Jr. on August 15, 2008. (NP) (Entered: 08/15/2008)
MINUTE ORDER granting 82 Withdrawal of Appearance. Attorney Gwenlynn Whittle D'Souza is terminated from this matter. Signed by Judge Henry H. Kennedy, Jr. on August 15, 2008. (NP) (Entered: 08/15/2008)
83 REPLY to opposition to motion re 75 MOTION to Certify Class filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) (Entered: 08/22/2008)
NOTICE of Hearing on Motion 75 to Certify Class : Motion Hearing set for 11/13/2008 @ 10:00 AM in Courtroom 27A before Judge Henry H. Kennedy. *Note: Parties will be allowed 20 minutes per side for oral argument* (tj ) (Entered: 08/25/2008)
84 Consent MOTION for Extension of Time to Serve Responsive Expert Disclosures by DISTRICT HOSPITAL PARTNERS, L.P. (Konn, Jamie) (Entered: 09/11/2008)
ORDER granting the 84 motion for extension of time to serve responseive expert disclosures. The parties responsive expert disclosures shall be served on or before 9/29/08. Signed by Judge Henry H. Kennedy on 9/18/08. (tj ) (Entered: 09/18/2008)
Minute Entry for proceedings held before Judge Henry H. Kennedy: Oral argument held on 11/13/2008 re 75 MOTION to Certify Class. Decision taken under advisement. (Court Reporter Annie Shaw.) (tj ) (Entered: 11/13/2008)
85 SUPPLEMENTAL MEMORANDUM to re 75 MOTION to Certify Class filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) (Entered: 11/14/2008)
86 MOTION for Extension of Time to Complete Discovery by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Exhibit)(Salb, Micah) (Entered: 11/25/2008)
87 RESPONSE re 85 Supplemental Memorandum in Support of Renewed Motion for Class Certification filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Konn, Jamie) (Entered: 11/25/2008)
88 Memorandum in opposition to re 86 MOTION for Extension of Time to Complete Discovery filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit 1)(Konn, Jamie) (Entered: 11/25/2008)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 14 of 19

12/01/2008 12/09/2008
12/10/2008 12/11/2008 12/11/2008 12/11/2008 12/12/2008
12/12/2008 12/18/2008 12/19/2008 12/19/2008 12/19/2008 12/24/2008

89 MEMORANDUM AND ORDER denying 75 Motion to Certify Class (Kennedy, Henry) (Entered: 12/01/2008)
90 WITHDRAWN PURSUANT TO MINUTE ORDER FILED 1/9/09..... MOTION for Protective Order by DISTRICT HOSPITAL PARTNERS, L.P. (Attachments: # 1 Memorandum in Support of Motion, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Text of Proposed Order)(Wayne, Charles) Modified on 1/9/2009 (kk). (Entered: 12/09/2008)
91 MOTION for Reconsideration re 89 Order on Motion to Certify Class by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Exhibit EEOC File)(Salb, Micah) (Entered: 12/10/2008)
92 ORDER granting in part 86 Motion for Enlargement of Time to Complete Discovery and amending 72 the scheduling order. Signed by Judge Henry H. Kennedy, Jr. on December 11, 2008. (NP) (Additional attachment(s) added on 12/11/2008: # 1 order) (ztj, ). (Entered: 12/11/2008)
Reset deadlines: Discovery shall close on February 2, 2009; summary judgment motions shall be filed by April 2, 2009; oppositions shall be filed by May 4, 2009; and replies shall be filed by May 26, 2009. Signed by Judge Henry H. Kennedy, Jr. on December 11, 2008. (NP) (Entered: 12/11/2008)
93 ORDER REFERRING MOTION: 90 Defendant's Motion for Protective Order is referred to United States Magistrate Judge Alan Kay for his determination. Signed by Judge Henry H. Kennedy, Jr. on December 11, 2008. (NP) (Entered: 12/11/2008)
94 Consent MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Mary E. Kuntz, :Firm− Lippman, Semsker &Salb, LLC, :Address− 7979 Old Georgetown Road, Suite 1100, Bethesda, Maryland 20814. Phone No. − (301) 656−6905. Fax No. − (301) 656−6906 by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Declaration of Mary Kuntz, # 2 Text of Proposed Order)(Salb, Micah) (Entered: 12/12/2008)
95 Memorandum in opposition to re 91 MOTION for Reconsideration re 89 Order on Motion to Certify Class filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Konn, Jamie) (Entered: 12/12/2008)
ORDER granting 94 Consent Motion for Admission Pro Hac Vice. Attorney Mary E. Kuntz is admitted pro hac vice to appear in this action on behalf of plaintiffs. Signed by Judge Henry H. Kennedy, Jr. on December 18, 2008. (NP) (Entered: 12/18/2008)
96 REPLY to opposition to motion re 91 MOTION for Reconsideration re 89 Order on Motion to Certify Class filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Attachments: # 1 Exhibit Test−takers Data (Excerpt))(Salb, Micah) (Entered: 12/19/2008)
97 Memorandum in opposition to re 90 MOTION for Protective Order filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Attachments: # 1 Exhibit Kuntz email to Wayne, # 2 Exhibit Salb letter to Wayne, # 3 Exhibit King Email)(Salb, Micah) (Entered: 12/19/2008)
98 MOTION for Costs by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (See Docket Entry 97 to view document ) (jf, ) (Entered: 12/24/2008)
99 REPLY to opposition to motion re 90 MOTION for Protective Order filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Wayne, Charles) (Entered: 12/24/2008)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 15 of 19

12/24/2008 01/02/2009 01/05/2009 01/05/2009 01/08/2009 01/09/2009
01/09/2009
01/09/2009
01/09/2009 01/09/2009 01/09/2009
01/13/2009 01/21/2009 01/21/2009
01/21/2009 01/21/2009

100 Memorandum in opposition to re 98 MOTION for costs filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Wayne, Charles) (Entered: 12/24/2008)
101 REPLY to opposition to motion re 98 MOTION for costs filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Attachments: # 1 Exhibit)(Salb, Micah) (Entered: 01/02/2009)
102 ORDER REFERRING MOTION: 98 Plaintiff's motion for costs is referred to United States Magistrate Judge Alan Kay for his determination. Signed by Judge Henry H. Kennedy, Jr. on January 5, 2009. (NP) (Entered: 01/05/2009)
103 CASE REFERRED to Magistrate Judge Alan Kay for motion 90 for protective order. (jeb, ) (Entered: 01/07/2009)
104 MOTION to Withdraw 90 MOTION for Protective Order by DISTRICT HOSPITAL PARTNERS, L.P. (Konn, Jamie) (Entered: 01/08/2009)
MINUTE ORDER denying 98 Motion for Costs; granting 104 Motion to Withdraw 90 Motion for Protective Order. In light of Defendant's Motion to Withdraw and representation that an agreement has been reached regarding deposition scheduling, the Court finds that there is no basis for sanctions or the imposition of costs. Signed by Magistrate Judge Alan Kay on 1/9/09. (lcak1) (Entered: 01/09/2009)
105 ENTERED IN ERROR.....STIPULATION of Dismissal of Marable and Muhammad by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) Modified on 1/9/2009 (tr). (Entered: 01/09/2009)
106 MOTION for Leave to File Fifth Amended Complaint by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Exhibit Proposed Fifth Amended Complaint)(Salb, Micah) (Entered: 01/09/2009)
107 STIPULATION of Dismissal by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) (Entered: 01/09/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 105 Stipulation of Dismissal was entered in error by the request of counsel. Counsel has refiled said pleading as docket entry 107 . (tr) (Entered: 01/09/2009)
108 MOTION to Set Aside Order on Motion for Miscellaneous Relief,, Order on Motion to Withdraw, Pursuant to Rule 72 by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Salb, Micah) (Entered: 01/09/2009)
109 ORDER denying 91 Plaintiffs' Motion for Reconsideration. Signed by Judge Henry H. Kennedy, Jr. on January 13, 2009. (NP) (Entered: 01/13/2009)
110 MOTION to Sever by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Salb, Micah) (Entered: 01/21/2009)
111 Emergency MOTION for Protective Order from Unnecessary Discovery by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Exhibit, # 2 Exhibit)(Salb, Micah) (Entered: 01/21/2009)
112 Memorandum in opposition to re 108 MOTION to Set Aside Order on Motion for Miscellaneous Relief,, Order on Motion to Withdraw, Pursuant to Rule 72 filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Konn, Jamie) (Entered: 01/21/2009)
113 Memorandum in opposition to re 106 MOTION for Leave to File Fifth Amended Complaint filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Konn, Jamie)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 16 of 19

01/28/2009
01/28/2009
01/28/2009 02/02/2009 02/02/2009 02/09/2009
02/09/2009
02/12/2009 02/12/2009 02/24/2009 02/24/2009 02/24/2009 02/27/2009 03/05/2009 03/05/2009

(Entered: 01/21/2009)
114 REPLY to opposition to motion re 108 MOTION to Set Aside Order on Motion for Miscellaneous Relief,, Order on Motion to Withdraw, Pursuant to Rule 72, 104 MOTION to Withdraw 90 MOTION for Protective Order, 98 MOTION for costs filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) (Entered: 01/28/2009)
115 REPLY to opposition to motion re 106 MOTION for leave to file an amended complaint filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) Modified on 1/28/2009 to reflect that the correct linkage as Document #106 rather than 110 (jeb, ). Modified on 1/28/2009 (jeb, ). (Entered: 01/28/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 115 Reply to opposition to Motion, was modified to properly link to the motion for leave to file an amended complaint 106 . (jeb, ) (Entered: 01/28/2009)
116 Memorandum in opposition to re 110 MOTION to Sever Claims filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Konn, Jamie) (Entered: 02/02/2009)
117 Memorandum in opposition to re 111 Emergency MOTION for Protective Order from Unnecessary Discovery filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit)(Konn, Jamie) (Entered: 02/02/2009)
118 ENTERED IN ERROR.....REPLY to opposition to motion re 110 MOTION to Sever filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) Modified on 2/12/2009 (jf, ). (Entered: 02/09/2009)
119 REPLY to opposition to motion re 111 Emergency MOTION for Protective Order from Unnecessary Discovery filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Salb, Micah) (Entered: 02/09/2009)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 118 Reply to opposition to Motion was entered in error at the request of counsel and a corrected version will be filed.(jf, ) (Entered: 02/12/2009)
120 REPLY to opposition to motion re 110 MOTION to Sever filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) (Entered: 02/12/2009)
121 ORDER granting 108 Plaintiffs' Motion for Review Pursuant to Rule 72 and denying 98 Plaintiff's Request for Costs. Signed by Judge Henry H. Kennedy, Jr. on February 24, 2009. (NP) (Entered: 02/24/2009)
122 ORDER granting 110 Plaintiffs' Motion to Sever Claims. Signed by Judge Henry H. Kennedy, Jr. on February 24, 2009. (NP) (Entered: 02/24/2009)
123 ORDER TO SHOW CAUSE. Plaintiffs shall show cause in writing, which writing shall be filed on or before March 2, 2009, why this court should not dismiss all claims asserted by Monica Brooks and Tracee Taylor. Signed by Judge Henry H. Kennedy, Jr. on February 24, 2009. (NP) (Entered: 02/24/2009)
124 RESPONSE TO ORDER OF THE COURT re 123 Order to Show Cause, filed by MONICA BROOKS, TRACEE TAYLOR. (Salb, Micah) (Entered: 02/27/2009)
125 Defendant's RESPONSE to Plaintiffs' Response to Order to Show Cause. (Konn, Jamie) Modified on 3/5/2009 to correct docket text (tr). (Entered: 03/05/2009)
126 CASE REFERRED to Magistrate Judge Alan Kay for discovery or discovery related disputes. (mmh, ) (Entered: 03/09/2009)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 17 of 19

03/10/2009 03/13/2009
03/16/2009
03/17/2009 03/17/2009 03/24/2009 03/31/2009 03/31/2009 03/31/2009 04/01/2009 04/01/2009 04/02/2009
04/02/2009
04/03/2009 04/23/2009

127 ORDER dismissing claims asserted by plaintiffs Monica Brooks and Tracee Taylor. Signed by Judge Henry H. Kennedy, Jr. on March 10, 2009. (NP) (Entered: 03/10/2009)
128 MOTION to Compel Payment of Expert's Fees and Costs by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD (Attachments: # 1 Exhibit Notice of Dep, # 2 Exhibit Salb email 1−27, # 3 Exhibit Konn email 1−29, # 4 Exhibit Veres CV, # 5 Exhibit Veres Bill, # 6 Exhibit Konn Letter, # 7 Exhibit Konn email 2−10, # 8 Exhibit Veres Afdt, # 9 Exhibit Veres Report)(Salb, Micah) (Entered: 03/13/2009)
MINUTE ORDER denying 111 Motion for Protective Order. In light of 127 ORDER dismissing claims asserted by plaintiffs Monica Brooks and Tracee Taylor, the Court finds that the Motion for Protective Order regarding those Plaintiffs is moot. Signed by Magistrate Judge Alan Kay on 3/16/09. (lcak1) (Entered: 03/16/2009)
129 ORDER REFERRING MOTION: 128 Plaintiffs' Motion to Compel Payment of Expert's Reasonable Fee for Defendant's Deposition is referred to United States Magistrate Judge Alan Kay. Signed by Judge Henry H. Kennedy, Jr. on March 17, 2009. (NP) (Entered: 03/17/2009)
130 CASE REFERRED to Magistrate Judge Alan Kay For the purpose of Motion to Compel Payment 128 . (ztr) (Entered: 03/19/2009)
131 Memorandum in opposition to re 128 MOTION to Compel Payment of Expert's Fees and Costs filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit Exhibits A − E)(Konn, Jamie) (Entered: 03/24/2009)
132 REPLY to opposition to motion re 128 MOTION to Compel Payment of Expert's Fees and Costs filed by NANCY PRINCE, MONICA BROOKS, TRACEE TAYLOR, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Salb, Micah) (Entered: 03/31/2009)
133 ENTERED IN ERROR.....NOTICE OF APPEAL as to 127 Order by MONICA BROOKS, TRACEE TAYLOR. Fee Status: No Fee Paid. Parties have been notified. (Salb, Micah) Modified on 4/1/2009 (tr). (Entered: 03/31/2009)
134 NOTICE OF APPEAL as to 127 Order by MONICA BROOKS, TRACEE TAYLOR. Filing fee $ 455, receipt number 00900000000001801339. Fee Status: Fee Paid. Parties have been notified. (Salb, Micah) (Entered: 03/31/2009)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 134 Notice of Appeal (tr) (Entered: 04/01/2009)
NOTICE OF CORRECTED DOCKET ENTRY: re 133 Notice of Appeal was entered in error and counsel has refiled said pleading as Docket Entry 134 . Please disregard Docket Entry 133 . (tr) (Entered: 04/01/2009)
135 MOTION for Summary Judgment and Memorandum in Support by DISTRICT HOSPITAL PARTNERS, L.P. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Konn, Jamie) (Entered: 04/02/2009)
136 MOTION for Summary Judgment by NANCY PRINCE, JANETTE ADAMS, KATHLEEN MCDONALD (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13)(Salb, Micah) (Entered: 04/02/2009)
USCA Case Number 09−7036 for 134 Notice of Appeal filed by MONICA BROOKS, TRACEE TAYLOR. (tr) (Entered: 04/06/2009)
137 MOTION for Entry of Judgment under Rule 54(b) by MONICA BROOKS, TRACEE TAYLOR (Attachments: # 1 Text of Proposed Order)(Salb, Micah) (Entered: 04/23/2009)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 18 of 19

05/01/2009 05/04/2009 05/05/2009 05/11/2009 05/18/2009 05/18/2009
05/29/2009 06/03/2009 06/04/2009 06/04/2009 06/17/2009 06/19/2009 06/19/2009 06/22/2009 06/22/2009

138 Consent MOTION for Extension of Time to File Oppositions by NANCY PRINCE, JANETTE ADAMS, KATHLEEN MCDONALD (Salb, Micah) (Entered: 05/01/2009)
139 Memorandum in opposition to re 137 MOTION for Entry of Judgment under Rule 54(b) filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit 1)(Konn, Jamie) (Entered: 05/04/2009)
MINUTE ORDER granting 138 Consent Motion for Extension of Time to File Oppositions. Signed by Judge Henry H. Kennedy, Jr. on May 5, 2009. (lchhk2.) (Entered: 05/05/2009)
140 REPLY to opposition to motion re 137 MOTION for Entry of Judgment under Rule 54(b) filed by MONICA BROOKS, TRACEE TAYLOR. (Salb, Micah) (Entered: 05/11/2009)
141 Memorandum in opposition to re 136 MOTION for Summary Judgment filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Attachments: # 1 Exhibit 1)(Konn, Jamie) (Entered: 05/18/2009)
142 Memorandum in opposition to re 135 MOTION for Summary Judgment and Memorandum in Support filed by NANCY PRINCE, JANETTE ADAMS, KATHLEEN MCDONALD. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15, # 16 Exhibit Exhibit 16, # 17 Exhibit Exhibit 17, # 18 Exhibit Exhibit 18, # 19 Exhibit Exhibit 19, # 20 Exhibit Exhibit 20, # 21 Exhibit Exhibit 21, # 22 Exhibit Exhibit 23, # 23 Exhibit Exhibit 24, # 24 Exhibit Exhibit 25, # 25 Exhibit Exhibit 26, # 26 Exhibit EXHIBIT LIST, # 27 Text of Proposed Order, # 28 Statement of Facts Statement of Disputed Facts)(Salb, Micah) (Entered: 05/18/2009)
143 ORDER granting 137 Motion for Final Judgment Pursuant to Fed. R. Civ. P. 54(b). Signed by Judge Henry H. Kennedy, Jr., on May 29, 2009. (lchhk2.) (Entered: 05/29/2009)
144 Consent MOTION for Extension of Time to File Response/Reply by DISTRICT HOSPITAL PARTNERS, L.P. (Konn, Jamie) (Entered: 06/03/2009)
MINUTE ORDER granting 144 Defendant's Consent Motion for Extension of Time for parties to file replies to 135 &136 cross−motions for summary judgment. The parties' replies are due by June 22, 2009. Signed by Judge Henry H. Kennedy, Jr., on June 4, 2009. (lchhk2.) (Entered: 06/04/2009)
145 MEMORANDUM ORDER granting in part and denying in part 128 Plaintiffs' Motion to Compel Payment of Expert's Reasonable Fee. Signed by Magistrate Judge Alan Kay on 6/4/09.(lcak1) (Entered: 06/04/2009)
146 MOTION to Amend/Correct 143 Order on Motion for Entry of Judgment under Rule 54(b) by MONICA BROOKS, TRACEE TAYLOR (Attachments: # 1 Text of Proposed Order)(Salb, Micah) (Entered: 06/17/2009)
MINUTE ORDER. It is hereby ORDERED that the Court's order of May 29, 2009, 143 is VACATED. Signed by Judge Henry H. Kennedy on June 19, 2009. (lchhk2.) (Entered: 06/19/2009)
147 ORDER granting 146 Motion to Correct an Order and entering Final Judgment pursuant to Fed. R. Civ. P. 54(b). Signed by Judge Henry H. Kennedy, Jr., on June 19, 2009. (lchhk2.) (Entered: 06/19/2009)
148 REPLY to opposition to motion re 135 MOTION for Summary Judgment and Memorandum in Support filed by DISTRICT HOSPITAL PARTNERS, L.P.. (Konn, Jamie) (Entered: 06/22/2009)
149 REPLY to opposition to motion re 136 MOTION for Summary Judgment filed by NANCY PRINCE, RENAE MARABLE, JANETTE ADAMS, KATHLEEN MCDONALD, ZAKIYYAH MUHAMMAD. (Attachments: # 1 Exhibit 1)(Salb, Micah) (Entered: 06/22/2009)

Case: 1:01-cv-2361 As of: 09/25/2012 10:09 AM EDT 19 of 19

01/08/2010 01/08/2010 07/29/2010 08/10/2010 08/20/2010 08/20/2010
08/30/2010
09/01/2010

150 ORDER by Chief Justice of the United States Supreme Court directing the designation and assignment of a United States District Judge for service in another circuit; assigning Judge James S. Gwin of the U.S. District Court for Northern District of Ohio to this case. (Signed by Chief Justice John D. Roberts on 12/31/09). (jeb, ) (Entered: 01/08/2010)
151 Case Reassigned to Judge James S. Gwin, U.S. District Court Judge for the Northern District of Ohio, sitting by designation. Judge Henry H. Kennedy no longer assigned to the case. (jeb, ) (Entered: 01/08/2010)
152 MANDATE of USCA (certified copy) as to 134 Notice of Appeal filed by MONICA BROOKS, TRACEE TAYLOR ; USCA Case Number 09−7036. ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby affirmed as to the Rule S4(b) order and reversed as to the dismissal order and remanded for further proceedings, in accordance with the opinion of the court filed herein this date. (kb) (Entered: 07/29/2010)
153 ORDER LIFTING STAY signed by Judge James S. Gwin on 8/10/10. The Court schedules a telephone conference with ALL counsel for 8/20/10 at 9:00 a.m. Contact with the Court shall be made as set forth in this entry. (Gwin, James) (Entered: 08/10/2010)
Minute Entry for telephone conference with counsel held on 8/20/10. (Court Reporter: none; Time: 1 hr. 15 min.) (Gwin, James) (Entered: 08/20/2010)
154 ORDER signed by Judge James S. Gwin on 8/20/10. The parties shall file opening briefs by 9/3/10 and response briefs by 9/10/10 on the issue of whether the D.C. Circuit's decision reverses the district court's decision denying class certification with respect to the external applicants, or whether this decision remains in effect. Additionally, the parties shall attend a mediation conference on Saturday, 8/28/10, at the office of DLA Piper, LLP in Washington, D.C., and defendants shall make the appropriate arrangements for the medication conference. (Gwin, James) (Entered: 08/20/2010)
155 SCHEDULING ORDER signed by Judge James S. Gwin on 8/30/10. Class certifications motions shall be filed by 10/4/10 with responses due 10/18/10 and replies by 10/25/10. Dispositive motions shall be filed by 10/11/10 with responses due by 10/25/10 and replies by 11/1/10. Final pretrial conference scheduled for 12/1/10 at 12:00 noon, Chambers 18A (Cleveland). Jury trial is assigned for 12/6/10 at 8:30 a.m., with a back−up date of 2/7/11 at 8:30 a.m., E. Barrett Prettyman U.S. Courthouse, 333 Constitution Ave., N.W., Washington, D.C. (courtroom assignment will take place at a later date). (Gwin, James) (Entered: 08/30/2010)
156 ORDER signed by Judge James S. Gwin on 9/1/10. Upon representation of the parties that all issues have been resovled, the docket is marked settled and dismissed with prejudice. The Court retains jurisdiction to resolve settlement disputes. (Gwin, James) (Entered: 09/01/2010)

 
 606 F.3d 800 United States Court of Appeals,
District of Columbia Circuit.
Monica BROOKS and Tracee Taylor, on behalf of Themselves and All Others Similarly Situated, Appellants v. DISTRICT HOSPITAL PARTNERS, L.P., Doing Business as George Washington University Hospital, Appellee.
No. 09–7036. | Argued Feb. 26, 2010. | Decided June 1, 2010.
Synopsis Background: External applicants to hospital position of multi–skilled technician (MST), who intervened in internal applicant’s action against hospital alleging employment discrimination under Title VII, appealed the United States District Court for the District of Columbia’s dismissal of their claims following internal applicant’s voluntary dismissal of her individual claim with prejudice.
Holdings: The Court of Appeals, Brown, Circuit Judge, held that:
[1] external applicants properly invoked Title VII’s “single-filing” exception to intervene, and
[2] external applicants could continue to avail themselves of “single-filing” exception after internal applicant voluntarily dismissed her suit.
Affirmed in part, reversed in part, and remanded.
*802 Appeal from the United States District Court for the District of Columbia (No. 1:01–cv–02361–HHK–AK).
Attorneys and Law Firms
S. Micah Salb, argued the cause and filed the briefs, for appellants.
Jennifer S. Goldstein, Attorney, Equal Employment Opportunity Commission, argued, the cause and filed the brief as amicus curiae, for appellants.

Elisha A. King, pro hac vice, argued the cause for appellee. With her on the brief were Charles B. Wayne and Jamie M. Konn.
Before: SENTELLE, Chief Judge, BROWN and GRIFFITH, Circuit Judges.
Opinion
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge:
**34 Appellants challenge the dismissal of their Title VII employment discrimination claims. Conversely, appellee contends the dismissal was proper and, further, that this court does not have jurisdiction to review the dismissal because it was not a final decision of the district court. We reverse the dismissal and remand for further proceedings, finding this court has jurisdiction to hear the appeal and that the district court improperly held that appellants did not exhaust their administrative remedies.
I
This appeal is merely the latest procedural cul-de-sac off what has been a long and winding road of litigation in this case. That road originated over a decade ago when defendant George Washington University Hospital1 decided to eliminate the position of “Nursing Assistant” from its employment classifications and replace it **35 *803 with the position of “Multi–Skilled Technician.” Nursing Assistants, as the title suggests, assisted registered nurses in basic tasks. MSTs, however, were to perform the tasks of Nursing Assistants and also undertake a wider array of responsibilities.
All Nursing Assistants were invited by GWUH to apply for MST positions by taking a three-part screening test to measure their ability to succeed in a subsequent MST training program. Nursing Assistants who failed any part of the screening test were offered remedial training and an opportunity to retake the failed portions of the test. A second failure disqualified them from the training program. Nursing Assistants who passed the initial screening test entered a MST training program that required successful completion of competency tests. A

Nursing Assistant failing any one of those ten tests could obtain remedial training and another chance to be tested. A second failure eliminated the candidate from the program. A Nursing Assistant who passed the post-training tests received one of the MST positions. For those MST positions still vacant, GWUH accepted applications from external applicants. These applicants took the same initial screening test to determine whether they possessed the minimum proficiency to perform the MST job. Successful external applicants did not participate in a MST training program; instead, they had to demonstrate the ability to perform MST duties and were subject to an interview process.
Renae Marable, a Nursing Assistant, passed the initial screening test but was eliminated from the hiring process after failing one of the ten MST competency tests. She filed a complaint with the U.S. Equal Employment Opportunity Commission on behalf of herself and all other similarly situated former Nursing Assistants who were subjected to the three-part screening test. Joining her complaint were specific persons listed in an attachment to the filing. Marable alleged the screening test measured skills unrelated to the MST job and discriminated against African–American Nursing Assistants. The EEOC investigation evaluated data related to both Nursing Assistants and external applicants and found no statutory violation. It concluded the screening test was a valid means of measuring MST skills and the most effective among a number of means considered by GWUH. The EEOC notified Marable of its finding and issued her a right-to-sue letter certifying that she exhausted her administrative remedies and could pursue judicial relief against GWUH.
In 2001, Marable and five co-plaintiffs filed a lawsuit alleging the screening test and the ten training program tests were discriminatory. The complaint also requested class action certification to represent all other Nursing Assistants similarly situated. In 2004, the plaintiffs moved to extend the class to cover external applicants for the MST position. That motion was denied by the district court because the proposed class did not exhibit the requisite commonality and typicality under FED.R.CIV.P. 23. See Mem. Op. & Order, Marable v. Dist. Hosp. Partners, L.P., No. 01–02361 at 12, 2006 WL 2547992 (D.D.C. Aug. 31, 2006). The court raised the possibility of two subclasses—one for Nursing Assistants and one for external applicants—but determined neither would be certifiable: a Nursing Assistant subclass would not be numerous enough; an external applicant subclass would have no named plaintiff who could act as a proper subclass representative. See id. at 12–14, 2006 WL 2547992.
In response, the plaintiffs moved to add as intervenors

two external applicants who failed the three-part screening test: Monica Brooks and Tracee Taylor, the appellants **36 *804 in this appeal. The district court granted the motion. Prior to joining the suit, Brooks and Taylor had not lodged a complaint against GWUH with the EEOC. Ordinarily, parties must file timely charges with the EEOC prior to pursuing relief in court, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). However, the district court allowed Brooks and Taylor to intervene under the “single-filing” exception to the normal rule. See Mem. Op. & Order, Marable, No. 01–02361 at 5–6, 2008 WL 5973384 (D.D.C. May 29, 2007). That exception allows non-filing parties to join the suit of another similarly situated plaintiff who did file an administrative complaint against the same defendant. See Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.Cir.1981).
With seemingly eligible class representatives included as intervenors, the plaintiffs moved for class certification for all external applicants. This time, the district court denied certification because it found Brooks and Taylor to be improper class representatives. Although Brooks and Taylor were allowed to join the Marable suit without personally filing an EEOC complaint, the district court concluded a proposed class representative must personally exhaust administrative remedies as a “condition precedent to sustaining a class action under Title VII.” Mem. Op. & Order, Marable v. District Hosp. Partners, L.P., No. 01–02361 at 4, 2008 WL 5501106 (D.D.C. Dec. 1, 2008). The plaintiffs filed a motion for reconsideration, and the district court denied it.
While the motion for reconsideration was pending, Marable voluntarily dismissed her individual claim with prejudice. Brooks and Taylor moved to sever their claims from the remaining Nursing Assistant plaintiffs under FED. R. CIV. P. 42(b). The district court granted their motion but issued an order for Brooks and Taylor to show cause why their claims should not be dismissed and, after reviewing submissions from both sides, dismissed Brooks’ and Taylor’s claims without further explanation. See Order, Marable v. Dist. Hosp. Partners, No. 01–02361, 2009 WL 1064479 (D.D.C. Mar. 13, 2009).
Brooks and Taylor appealed that dismissal. This court ordered them to show cause why the appeal should not be dismissed for lack of jurisdiction pursuant to FED.R.CIV.P. 54(b). See Order, Brooks v. Dist. Hosp. Partners, L.P., No. 09–7036 (D.C.Cir. Apr. 6, 2009). Under that rule, an order in a multiple claim or multiple party case that adjudicates fewer than all the claims or the rights of fewer than all the parties is not reviewable absent a certification from the district court that the order is a final judgment. Appellants subsequently moved for certification in the district court, which granted the

motion. The court confirmed that it had “severed the claims of Brooks and Taylor ... [and] dismissed the[ir] claims ... in their entirety for failure to exhaust administrative remedies.” Order, Marable, No. 01–02361, 2008 WL 5973384 (D.D.C. May 29, 2009). In response to appellants’ motion to amend the certification order to explicitly weigh Rule 54(b) considerations, the district court issued an amended order noting that a certification of finality served equitable interests and was not detrimental to judicial economy. See Order, Brooks v. Dist. Hosp. Partners, L.P., No. 01–02361 at 1–2 (D.D.C. June 19, 2009). This court discharged its earlier show cause order and directed the parties to address the jurisdictional issue in their main briefing.

II

A
[1] We first consider this court’s jurisdiction to hear the appeal. The federal appellate power generally covers only “final **37 *805 decisions of the district courts,” 28 U.S.C. § 1291. Therefore, we must determine the validity of the district court’s Rule 54(b) order certifying the dismissal of appellants’ claims as final. Two questions form that determination: whether the dismissal was eligible for certification as a final judgment under the criteria established by Rule 54(b) and whether the district court adequately weighed the relevant equities when deciding to grant the certification. We review the first question de novo and the second question for abuse of discretion. See Bldg. Indus. Assoc. v. Babbitt, 161 F.3d 740, 743–44 (D.C.Cir.1998).

On the first question, GWUH argues the dismissal of

appellants’ claims cannot be considered final under Rule

54(b) because, prior to dismissal, the district court severed

the claims from those of the Nursing Assistants pursuant

to FED.R.CIV.P. 42(b). That rule empowers district

courts to order separate trials for different issues or claims

but still regard the set of issues or claims as a single case.

Therefore, GWUH contends the dismissal of a claim

severed—or,

perhaps

more

accurately,

separated—pursuant to Rule 42(b) is not a final and

appealable judgment of an entire case but rather an

interlocutory and non-appealable judgment of a subset of

claims. See, e.g., Gaffney v. Riverboat Servs. of Ind., Inc.,

451 F.3d 424, 441–42 (7th Cir.2006).

[2] But Rule 54(b) is not simply a superfluous reaffirmation of the finality constraints of 28 U.S.C. § 1291. Instead, as its text makes clear, Rule 54(b)

empowers a court to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties” in a multiple claim or multiple party case, even though such judgments are not generally considered final. Therefore, should a claim separated under Rule 42(b) be dismissed and otherwise meet the criteria of Rule 54(b), a court can certify that claim as final and appealable. Gaffney, the case on which GWUH relies for its argument, acknowledges as much, stating that a “judgment on a claim tried separately is not an appealable final judgment, unless certified for immediate appeal under Rule 54.” 451 F.3d at 442 n. 18 (quoting 4 MOORE’S FED. PRACTICE § 21.06 (2005)) (emphasis added). Because appellants’ claims were separated under Rule 42(b) and because the dismissal of appellants’ claims constituted the “adjudicat[ion of] ... the rights and liabilities of fewer than all the parties” in a multiple party case, FED.R.CIV.P. 54(b), we find the dismissal was eligible for Rule 54(b) certification.2
*806 **38 We note our holding is not premised on the argument appellants advance in support of it. Appellants argue the dismissal was eligible for Rule 54(b) certification because the district court actually severed their claims under FED.R.CIV.P. 21, which authorizes severance of claims into distinct actions. There are two problems with this argument. First, like GWUH’s argument, it misunderstands the function of Rule 54(b). Again, the rule only applies to multiple claim and multiple party actions where fewer than all of the claims or parties are adjudicated. If appellants’ claims were actually severed under Rule 21 and then dismissed, that would have meant all the claims in a single civil action were dismissed. A Rule 54(b) certification therefore would have been both inapplicable and unnecessary since the dismissal, standing alone, would have constituted an appealable final judgment. The second problem is appellants clearly did not sever their claims under Rule 21. The plain text of appellants’ motion to sever requested action “[p]ursuant to Rule 42(b),” Plaintiffs’ Motion to Sever Claims, Brooks, No. 01–02361 at 1 (D.D.C. Jan. 21, 2009), and the district court granted that motion with no mention of any other rule, see Order, Marable, No. 01–02361 (D.D.C. Feb. 24, 2009). We see no reason to read that order as anything other than an action under Rule 42(b). We highlight this point now because we return to it in section II.B where we consider whether the district court’s dismissal of appellants’ claims was proper.
[3] We turn to the next jurisdictional hurdle: did the district court properly weigh the relevant equities when granting the Rule 54(b) certification? The rule does not allow a court to certify any and all eligible claims, but only those for which “the court expressly determines that there is no just reason for delay” of an appeal. FED.R.CIV.P. 54(b). This determination weighs both “justice to the litigants”

and “the interest of sound judicial administration.” Curtiss–Wright Corp., 446 U.S. at 6, 8, 100 S.Ct. 1460. The factors affecting “justice to the parties” will inevitably differ from case to case, but the factors pertaining to judicial administration include “whether the claims under review [are] separable from the others remaining to be adjudicated and whether the nature of the claims already determined [is] such that no appellate court [will] have to decide the same issues more than once even if there [are] subsequent appeals.” Id. at 8, 100 S.Ct. 1460. GWUH does not directly dispute that these factors were correctly weighed on the face of the amended Rule 54(b) order. Instead, it argues the district court abused its discretion in “simply adopt[ing] the proposed order submitted by the appellants without even giving the Hospital a chance to respond.” Br. for Appellee at 26. In GWUH’s opinion, that adoption was nearly tantamount to the district court offering no reasoning at all.
[4] [5] This argument is unpersuasive. The wholesale adoption of an otherwise valid proposed order is not an abuse of discretion. Cf. United States v. El Paso Nat. Gas. Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (“[Proposed] findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.”). The order the district court adopted, as GWUH concedes, expressly weighed the factors relevant to Rule 54(b). We give the district court’s consideration of those factors “substantial **39 *807 deference,” Curtiss–Wright Corp., 446 U.S. at 10, 100 S.Ct. 1460, and GWUH points to no evidence—and we find none—that disturbs the district court’s conclusion.
Because the district court properly certified its dismissal of appellants’ claims as final, we find this court has jurisdiction to hear appellants’ appeal of that dismissal.
B
[6] Finally, we consider whether the district court properly dismissed appellants’ claims. Although the district court’s dismissal order contained no explanation, its Rule 54(b) amended order retrospectively explained that it “dismissed the claims of Brooks and Taylor in their entirety for failure to exhaust administrative remedies.” Order, Brooks, No. 01–02361 at 2 (D.D.C. June 19, 2009). A challenge to a dismissal for lack of administrative exhaustion is a question of law, which this court reviews de novo. See Blackmon–Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 704 (D.C.Cir.2009). We find that the district court improperly dismissed

appellants’ claims.
[7] As explained in part I, this court recognizes a “single-filing” exception to Title VII’s usual rule that all employment discrimination claims be initially filed with the EEOC. This exception allows non-filing parties to join the lawsuit of a filing party if they possess claims “that are so similar to those asserted by the original plaintiff[ ] that no purpose would be served by requiring [them] to file independent ... charges.” Foster, 655 F.2d at 1323. Therefore, if the original filing performs the “principal functions of the EEOC filing requirement” of providing the defendant with notice of all charges and offering the EEOC an opportunity to resolve the matter, id., a second filing is not necessary if a similarly situated plaintiff wishes to join the suit.
[8] This case presents such a situation. The EEOC complaint filed by Marable did not challenge GWUH’s application process on behalf of external applicants and, in fact, erroneously alleged that external applicants were not required to take the same screening test the Nursing Assistants were. See Letter from Solaman Lippman & Renae Marable to EEOC ¶ 9 (Apr. 2, 1999). However, the complaint alleged the screening test was discriminatory against African Americans, the same claim brought by appellants as intervening external applicants. Further, the EEOC’s investigation of the complaint was not limited to Nursing Assistants, but extended to the test results and racial data of external applicants. See Letter from EEOC to Gregg Avitabile (Oct. 24, 2000). Analysis of that data found the screening test “administered to internal and external applicants ... did in fact have a disparate impact on Black candidates,” though ultimately an impact the EEOC deemed an unlikely statutory violation. Letter from EEOC to Renae Marable (Aug. 10, 2001). These facts indicate that an independent EEOC filing by appellants would have been redundant: GWUH already had received adequate notice of appellants’ exact allegation and the EEOC had first crack at resolving that allegation. Appellants, therefore, properly invoked the single-filing exception to join the lawsuit filed by Marable and her co-plaintiffs.3
That determination does not end our inquiry, however. Two issues remain. **40 *808 First, the parties’ briefs disputed whether appellants currently are joined to the lawsuit filed by Marable and her Nursing Assistant co-plaintiffs. As discussed in section II.A, supra, the parties when arguing the jurisdictional issue differed on which rule of civil procedure appellants invoked to sever their claims from those of the other plaintiffs. If it was Rule 42(b), appellants remain part of the overall Marable case and are properly joined under the single-filing exception. However, if it was Rule 21, appellants’ claims would constitute an independent action. Because the

single-filing exception does not apply where there is no joinder to the suit brought by the original filer, Kizas v. Webster, 707 F.2d 524, 547 (D.C.Cir.1983), an independent suit brought by appellants would demand dismissal for lack of administrative exhaustion.
Ironically, both sides’ briefs take the position when arguing the jurisdictional issue that hurts their case with respect to the dismissal issue. Appellants’ brief attempts to overcome that self-imposed hurdle by urging this court to break new ground and apply the single-filing exception in the absence of joinder to a distinct action brought by non-filing plaintiffs. However, appellants backtracked from that entreaty at oral argument and now contend, for purposes of the dismissal issue, that they separated their claims under Rule 42(b) and not Rule 21. We agree.
[9] The next question is whether Marable’s EEOC filing can serve as the basis for appellants’ claims when Marable has voluntarily dismissed her suit with prejudice. GWUH argues that it cannot, pointing out that the single-filing exception does not apply when the original EEOC filer is not party to the suit. GWUH’s argument would be persuasive if Marable were the only plaintiff who filed an EEOC complaint. However, this is not the case. Marable’s EEOC filing contained an attachment that listed the names and contact information of additional complainants. See Letter from Solaman Lippman & Renae Marable to EEOC at ¶ 4 (April 2, 1999) (“Charges are herewith filed ... on [Marable’s] own behalf and on behalf of the attached list of persons who were also employed as Assistant Nurses.”). Among those listed were Janette Adams, Kathleen McDonald, and Nancy Prince—the three former Nursing Assistants who remain as plaintiffs in the overall action. Under EEOC’s regulations, a “charge on behalf of a person claiming to be aggrieved may be made by any person,” as long as “the name, address, and telephone number of the person on whose behalf the charge is made” are provided to the

EEOC. 29 C.F.R. § 1601.7(a). Further, the EEOC issues right-to-sue letters to “the person claiming to be aggrieved or the person on whose behalf a charge was filed.” Id. § 1601.19(a). Therefore, the remaining Nursing Assistants all exhausted their administrative remedies and received the right to sue when they joined Marable’s EEOC complaint. As long as one of those plaintiffs remains party to the suit, appellants can continue to avail themselves of the single-filing exception.
Because appellants properly intervened in a lawsuit brought after the original plaintiffs filed EEOC charges and because appellants remain as plaintiffs in that suit, the dismissal of their claims for lack of administrative exhaustion was in error.
III
The district court properly authorized its dismissal of appellants’ claims as final under Rule 54(b), giving this court jurisdiction to hear this appeal. The district court, however, improperly dismissed appellants’ claims for lack of administrative exhaustion. For these reasons, we affirm the district court’s Rule 54(b) order but **41 *809 reverse its dismissal order and remand for further proceedings.
So ordered.
Parallel Citations
109 Fair Empl.Prac.Cas. (BNA) 648, 391 U.S.App.D.C. 32