Case: Marable v. District Hospital Partners, L.P.

On November 13, 2001, six African-American former Nursing Assistants of the George Washington University Hospital filed a lawsuit in the U.S. District Court for the District of Columbia, against the Hospital. They brought the action under 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, seeking declaratory, injunctive, and monetary relief as well as class certification on behalf of all former and present African-American Nursing Assistants who were Hospital employees between July 28, 1998 and November 15, 1998.

In 1998, the Hospital had eliminated its Nursing Assistant positions and replaced them with Multi-Skilled Technician (Technician) positions. It terminated all Nursing Assistants, including the plaintiffs, and required them to satisfy four requirements before becoming Technicians--to submit requests to transfer within two weeks, to pass screening tests, to complete training courses, and to pass competency examinations. The plaintiffs failed one or more requirements, and thus were not offered a Technician job. Represented by private counsel, the plaintiffs alleged that the requirements were racially discriminatory, because they resulted in a racially disparate impact.

The Hospital moved to dismiss the case, on the grounds that the plaintiffs failed to state a cognizable Title VII disparate impact claim, and that they failed to exhaust their administrative remedies by filing a complaint with the Equal Employment Opportunity Commission (EEOC). On February 20, 2003, the District Court (Judge Henry H. Kennedy, Jr.) granted the motion to dismiss in part and denied it in part. The Court found that the plaintiffs had not adequately exhausted their administrative claim with respect to the requirement to submit requests, even under the lenient motion to dismiss standard. The Court rejected the rest of the defendant's theories.

Subsequently, the plaintiffs filed a motion to certify a class of all African-American applicants for the Technician position who were not hired as a result of their failure to pass the screening tests. This proposed class included both internal applicants (former Nursing Assistants at the Hospital), and external applicants who were subjected to the same screening tests.

After several joint motions to stay proceedings, the Court denied the class certification motion on August 31, 2006. Marable v. Dist. Hosp. Partners, L.P., 2006 WL 2547992 (D.D.C. Aug. 31, 2006). Judge Kennedy reasoned that the class of internal and external applicants failed to meet the commonality requirement, for the screening tests served different purposes for the two groups. The Court concluded that single class treatment was inappropriate, but noticed the possibility of creating a subclass. However, the Court noted that it could not at that point certify a subclass of external applicants because no African-American external applicant who failed the screening tests was among the named representatives.

In light of the Court's opinion, the plaintiffs moved to amend their complaint to add as co-plaintiffs two external applicants who failed the screening tests. The Court granted the motion, and the plaintiffs filed their third amended complaint on May 29, 2007.

The plaintiffs then renewed the motion for class certification, on behalf of all external African-American applicants for the MST position at GWUH who failed to pass the screening test from July 1998 through the present. On December 1, 2008, the Court denied their motion to certify a class. Marable v. Dist. Hosp. Partners, L.P., 2008 WL 5501106 (D.D.C. Dec. 1, 2008). The Court reasoned that the external applicant plaintiffs had not exhausted their administrative remedies, since no one among the proposed class had filed a complaint with the EEOC.

In the meantime, two of the five remaining Nursing Assistant plaintiffs, including the one who filed the original EEOC charge, voluntarily dismissed their claims against the defendant. The other three moved to sever their claims from that of the two external applicant plaintiffs and the proposed external applicant class. Judge Kennedy granted the motion to sever on February 24, 2009, and dismissed all claims asserted by the external applicant plaintiffs on March 10, 2009, for their failure to exhaust administrative remedies. A final judgment was later entered against the external applicant plaintiffs, while they appealed the dismissal to the District of Columbia Circuit.

On June 1, 2010, in an opinion by Judge Janice Rogers Brown, the Court of Appeals reversed the dismissal order, and remanded the case back to the lower court. Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800 (D.C. Cir. 2010). The D.C. Circuit held that the lower court improperly dismissed the external applicants' claims for lack of administrative exhaustion. The Court found that the external applicants properly invoked Title VII's single-filing exception to intervene, and that the exception was applicable even after the Nursing Assistant plaintiff who filed the initial EEOC charge voluntarily exited the case.

On remand, on September 1, 2010, the parties--apparently including both internal and external applicants--reached a private settlement agreement. This ended the case.