Brooks v. District Hospital Partners, L.P.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 26, 2010 Decided June 1, 2010

No. 09-7036

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

Appeal from the United States District Court
for the District of Columbia
(No. 1:01-cv-02361-HHK-AK)

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
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Jamie M. Konn.

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: 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 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
1
The hospital’s official business moniker is District Hospital Partners, L.P.
 3 

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
 4 

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 (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.

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 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
(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 (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
 5 

(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, No. 01-02361
at 4 (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, No.
01-02361 (D.D.C. Mar. 10, 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
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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 (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

We first consider this court’s jurisdiction to hear the
appeal. The federal appellate power generally covers only
“final 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
 7 

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).

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

2
  The parties in this case fail to recognize the multiple party aspect of Rule
54(b) and discuss the rule as if it only permitted the certification of a
dismissed claim in a multiple claim action. This is somewhat
understandable, since federal caselaw on this topic mainly concerns single
 8 

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.

claims amidst multiple claims. See, e.g., Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 7 (1980) (“[The judgment] must be ‘final’ in the
sense that it is an ultimate disposition of an individual claim entered in the
course of a multiple claims action.”); Bldg. Indus. Assoc., 161 F.3d at 744
(same). The tilt of the caselaw is perhaps a residual effect of an older
version of Rule 54(b) that only covered multiple claim actions. However,
the rule was amended to cover multiple party situations. See FED. R. CIV.
P. 54(b), 1961 Amendment cmt. (“The danger of hardship through delay of
appeal . . . may be at least as serious in multiple-parties situations as in
multiple-claims cases . . . [and t]he amendment . . . refer[s] explicitly to
parties.”); Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 n.3 (1976)
(“Rule [54(b)] was amended to insure that orders finally disposing of some
but not all of the parties could be appealed pursuant to its provisions.”).
The motivation behind the amendment was to provide plaintiffs a way to
appeal the dismissal of a defendant in a multiple defendant action, not
necessarily their own dismissal from a multiple plaintiff case. See FED. R.
CIV. P. 54(b), 1961 Amendment cmt. However, the text of Rule 54(b)
does not distinguish between plaintiffs and defendants and, by its terms, the
rule applies to all multiple party situations.     
 9 

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.

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. 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. 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.

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
 10 

U.S. 651, 656 (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 deference,”
Curtiss-Wright Corp., 446 U.S. at 10, 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

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.

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
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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.

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
3
We note the district court reached this same conclusion when it granted
appellants’ motion to intervene in the lawsuit. See Mem. Op. & Order,
 12 

That determination does not end our inquiry, however.
Two issues remain. 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.

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

Marable, No. 01-02361 at 5–6 (D.D.C. May 29, 2007). Why the district
court seemingly reversed that decision when it dismissed appellants’ claims
is unclear. Because we review the dismissal de novo, there is no need to
inquire into the exact reason.
 13 

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
 14 

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 reverse its dismissal order
and remand for further proceedings.

So ordered.