ML20206N616

Litigation Rept 1999 - 2

ML20206N616
Person / Time
Issue date:	04/29/1999
From:	Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:
References
SECY-99-124, SECY-99-124-R, NUDOCS 9905180010
Download: ML20206N616 (45)

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2 ADJUDICATORY ISSUE (Information)

April 29, 1999 SECY-99-124 FOR:

The Commission FROM:

John F. Cordes, rlh Solicitor

SUBJECT:

LITIGATION ORT - 1999 - 2 National Whistleblower Center v. NRC, No. 98-1581 (D.C. Cir., decided March 31,1999)

This was the first of three lawsuits filed by the National Whistleblower Center (NWC) challenging its dismissal, for failure to file timely contentions, from the Calvert Cliffs license renewal proceeding. We moved to dismiss this lawsuit as premature, on the ground that it was filed at the same time as NWC was pursuing an administrative appeal to the Commission. The court of appeals (Edwards, Ginsburg & Sentelle, JJ.) agreed with our position and issued an order dismissing the suit.

Remaining before the court of appeals are two additional suits, filed after the final Commission decision in the Calvert Cliffs case. The court of appeals has consolidated the two remaining suits for briefing and argument, but has not yet established a briefing schedule.

. CONTACT: Marjorie S. Nordlinger 415-1616 Dienethal v. NRC, No. 99-1001 (D.C. Cir., decided March 31,1999)

This lawsuit challenged a Licensing Board decision dismissing petitioner's challenge, for lack of standing, to license amendments at Commonwealth Edison Company's Zion nuclear power plant. We filed a motion to dismiss the suit, on the ground that it had been filed prematurely.

At the time petitioner filed suit, he also was pursuing an administrative appeal of the Board decision to the Commission. The Commission ultimately affirmed the Board decision (CLl 04).

The court of appeals (Edward, Ginsburg & Sentelle, JJ.) agreed with our prematurity argument and issued a one-page order granting our motion to dismiss.

CONTACT: Brooke D. Poole 415-2490

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_Di.e_n,qthal v NRC, No. 99-1122 (D.C. Cir., filed April 2,1999)

Upon the court of appeals' dismissal of petitioner's premature lawsuit (see description immediately above), petitioner refiled his suit and styled it as a challenge to the Commission's final order affirming the Licensing Board decision. Petitioner's latest lawsuit is timely. He again will assert that he has standing to intervene in a Zion license amendment proceeding. The Board and the Commission ruled that petitioner had failed to specify how he might be harmed by the challenged amendments -- which facilitated certain staffing and management changes at Zion to account for its defueled and shut-down status.

The court of appeals has not yet established a briefing schedule.

CONTACT: Brooke D. Poole 415-2490 Dolford v. United international Investicative Services. Inc., No.AW-98-3984 (D. Md., decided February 26,1999)

Plaintiffs in this lawsuit were former security guards at the NRC who lost their jobs when they could not meet weight requirements contained in their employer's contract with the NRC. They sued their employer, former NRC contractor United International investigative Services (UllS),

and claimed unlawful discrimination under the Americans With Disabilities Act (ADA). UllS, in turn, brought a " third-party action" against the NRC on the theory that Ul!S's decision to fire plaintiffs rested entirely on NRC-imposed weight requirements for security guards. UllS demanded that the NRC provide indemnification for any damages assessed against UllS.

The district court (Williams, J.) issued an order terminating the lawsuit. The court ruled that neither the ADA itself nor federal common law gave contractors a right to seek indemnification from the government in ADA suits. The court also ruled that plaintiffs' obesity was not a proper basis for an ADA suit, both because obesity is not generally regarded as a " disability" under the ADA and because UllS did not regard plaintiffs as disabled or take action against them on that ground.

We worked with the U.S. Attorney's office in Ma.yland in defending this lawsuit. There apparently will be no appeal.

CONTACT: Grace H. Kim 415-3605 Timbers v. United States, No. MJG 99 CV 501 (D. Md., filed March 3,1999)

This is a Federal Tort Claims Act suit for damages against the United States arising out of a slip and fall in an NRC building (OWFN). The fall allegedly occurred because of a wet floor.

Plaintiff has sued not only the government but also an NRC contractor, Tecom. OGC is working with the United States Attorney's office in defending the suit.

DISTRIBUTION:

CONTACT: Donald F. Hassell Commissioners CIO 415-1550 OGC CFO OCAA EDO OIG REGIONS OPA SECY OCA

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National Whistleblower Center v. NRC. No. 98-1581 (D.C. Cir., decided March 31,1999) l I

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Fon THE DISTRICT OF COLUMBIA CIRCUIT No. 98-1581 September Term,1998 99-1043 UNITEDSTATESCOURT OF APPEALS FORDISTRICTOF COLUMBLACIRCIAT National Whistleblower Center, Petitioner FILED HAR 311999 v.

CLERK Nuclear Regulatory Commission and United States of

America, Respondents i

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BEFORE: Edwards, Chief Judge; Ginsburg and Sentelle, Circuit Judges

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ORDER Upon consideration of the motions to dismiss, the opposition thereto including a request for consolidation, and the reply, it is ORDERED that the motions to dismiss No. 98-1581, for lack of a final order and as incurably premature, be granted. Petitioner sought judicial review of a r.on-final agency order at the same time it pursued an appeal before the agency. When a petition for review is filed before an agency order is final, subsequent action by the agency will not ripen the petition for review. San Melcher v. FCC.134 F.3d 1143,1163 (D.C. Cir.1998), citing TeleSTAR. Inc. v. FCC. 888 F.2d 132,133-34 (D.C. Cir.1989). Egg glag Wade v. FCC.

986 F.2d 1433,1434 (D.C. Cir.1993) (discussing danger of wasted judicial effort attendant to simultaneous exercise of jurisdiction by agency and court). It is FURTHER ORDERED that the motion to consolidate be granted in part, and that Nos. 99-1002 and 99-1043 be consolidated.

. The Clerk is directed to withhold issuance of the mandate in No. 98-1581 until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.

. San Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam e

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Dienethat v. NRC. No. 99-1001 (D.C. Cir., decided March 31,1999) l t

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Knitch $tates @ourt of Appeals FOR THE DISTRICT OF COLUMetA CIRCUIT l

No. 99-1001 September Term,1998 j

l Edwin D. Dienethal' EDSTATES COURI0F APPEAL Petitioner i

FORDlSTRICTOFCOLUMBIADR v.

FILED g 3lg Nuclear Regulatory Commission and United States of America, Respondents CLERK Commonwealth Edison Company, Intervenor BEFORE: Edwards, Chief Judge; Ginsburg and Sentelle, Circuit Judges O_R_D.E_R Upon consideration of the motions to dismiss, the responses thereto, and the reply; and the motion to strike and the opposition thereto, it is ORDERED that the motions to dismiss, for lack of a final order and as incurably premature, be granted. Petitioner sought judicial review of a non-final agency order at the same time it pursued an appeal before the agency. When a petition for review is filed before an agency order is final, subsequent action by the agency will not ripen the petition for review. San Melcher v. FCC.134 F.3d 1143,1163 (D.C. Cir.1998), citing i

TeleSTAR. Inc. v. FCC. 888 F.2d 132,133-34 (D.C. Cir.1989). Sag al q Wade v.

i EQQ,986 F.2d 1433,1434 (D.C. Cir.1993) (discussing danger of wasted judicial effort attendant to simultaneous exercise of jurisdiction by agency and court). It is FURTHER ORDERED that the motion to strike be denied. Respondent's reply was timely-filed. Sea Fed. R. App. P. 27(a)(4).

- The Clerk is directed to withhold issuance of the mandate until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. Sgg Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

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l Dienethat v. NRC. No. 99-1122 (D.C. Cir., filed April 2,1999)

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UN11tuSTATECOURTOFAPPEALS FORDETRICTOFCOLUMBIACIRCUli UiwTED$TATES COURTOF AP I

APR 0 21999 UFITED STATES COURT OF APPEALS Wi1R 'JHE DISTRICT OF COLUMBIA CIRCU RED Ag gg

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EDWIN D. DIENETHAL,

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Petitioner,

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Docket No.

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U.S. NUCLEAR REGULATORY

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COMMISSION and the

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UNITED STATES OF AMERICA,

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Respondents.

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PETITION FOR REVIEW Petitioner, EDWIN D. DIENETHAL, hereby files this Petition for Review in accordance with the Hobbs Act, 28 U.S.C.

S 2344.

Mr. Dienethal files his Petition for Review of the U.S. Nuclear Regulatory Commission's ("NRC") dismissal of a licensing proceeding docketed before the NRC Commission as Docket Nos. 50-295-LA and 50-304-LA and before the NRC Atomic Safety and Licensing Board as ASLPB No. 98-744-04-LA.

The Respondent in this petition is the United States of America and the NRC. Venue in this Court is based on 28 U.S.C.

SS 2342 and 2343.

The decision being appealed is a final decision entered by the NRC and all prior decisions of the Commission and the Atomic Safety and Licensing Board ("ASLB"). The grounds for relief were raised in the administrative record below. Moreover, the decision of the

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25f NRC denying Petitioner's request for a hearing and dismissing Patitioner's petition for intervention were issued in violation of law, not in accordance with NRC regulations and case law, the Atomic Energy Act, and Administrative Procedure Act and the f

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constituted'a violation of procedural due process un er t e f

Constitution, it was arbitrary, capricious, not based on

. substantial evidence and constituted an abuse of discretion.

'J Finally, the Respondents violated the laws and regulations identified above when they held that Petitioner lacked standing to intervene in the license amendments issued to Commonwealth Petitioner requests that the decision of the NRC Edison Company.

and the (and/or enjoined, suspended or modified) be set aside The NRC must also be case be remanded'to the NRC for a hearing.

directed to grant the petition to intervene filed Petitioner and pay the Petitioner's attorneys fees and costs under the Equal Access to Justice Act.

he Matter

.A copy of the final decision being appealed, In t (Zion Nuclear Power Station Units of com.manwealth Edison Comnany h

and 2L, Nos. 50-295/304, CLI-99-04, Memorandum and Order (Marc 1

Also being appealed are the prior 2,1999),- is attached hereto.

decisions of the ASLB, which were affirmed by the NRC Commission in its March'2, 1999 Memorandum and Order.

Sag, ALSB Memorandum 2

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' and Order LBP-98-27, 48 NRC 271 (1998).

Respeepf lly subbitted,

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Stephen M. Kohn National Whistleblower Legal Defense and Education Fund 3233 P Street, N.W.

Washington, D.C. 20007 (202) 342-6980 CERTIFICATE OF SERVICE I

Petitioner hereby certifies that on April 2, 1999 a copy of this Petition for Review was served, by First Class Mail, upon the following counsel of record:

Sherwin E. Turk, Attorney Robert M. Weisman, Attorney Office of General Counsel Mail Stop 15 B18 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Nicholas Reynolds, Attorney Commonwealth Edison Company Winston & Strawn 1400 L Street, N.W.

Wash' gt DC 20005-3502 j

Stephen M. Kohn 3

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Dolford v. United International Investicative Services. Inc., No.AW-98-3984

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4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SI ARYLAND SOUTHERN DIVISION PEGGY DOLFORD. et al.

Plaintiffs s s.

l'NITED INTERNATIONAL Civil Action No. AW-98 3984 INVESTIG ATIVE SERVICES, INC.

Defendant /

Third Party Plaintiff Yb.

SHIRLEY J ACKSON, Chairperson, Nt' CLEAR REGl;LATORY CO.ilMISSION i

Third Party Defendant MEMORANDUNI OPINION Pending before the Court are Third-Party Defendant's, Shirley A. Jackson, Chairperson.

Nuclear Regulatory Commission, Motion to Dismiss Third-Party Complaint. and Defendant's.

United Intemational Investigative Services, Motion for Summary Judgment. A hearing was held on February 22.1999. For the reasons stated below, the Court will grant both motions.

FACTUAL BACKGROUND Plaintiffs are former employees of Defendant United Intemational Investigative Services I

(hereinafter "UllS"). They were employed by UllS as security guards at the Nuclear Regulatory Commission (hereinafter "NRC"), a U.S. governmental agency in Rockville, Maryland, which subcontracted with UllS for its security guard services. Plaintiffs bring this action under The Americans With Disabilities Act (the "ADA"),42 U.S.C. { 12101 gi ss.g., alleging that they were

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disability on account of their weight. UllS. however, does not dispute that the plaintiffs were j

Dred because of their weight. Ull5 c. aims that the plaintiffs u ere temiinated because they failed l

1 to meet certain height weight and maximum body fat standards promulgated by the NRC. These height weight and maximum body fat standards became mandatory condnions oil ~llS's con:rae; l

with' the NRC in 1995.

l UllS claims that plaintiffs were told in 1995 that compliance with the standards was a j

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condition to their employment, and failure to comply with them u as grounJs for tenuination. As :

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such,in 1995 and 199S plaintiffs were given physical examinations by CIIS doctors to l

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determine their height, weight, and percentage of body fat. However, from the time the standards j

were implemented in 1995 until the date that each plaintiff was terminated. none of them ever met the requirements. Despite the fact that UllS admits that it had no other performance l-problems with the plaintiffs, it claims that ifit had not enforced the height weight and maximum l

body fat standards it would have been in default ofits contract with NRC. Thus, based on the NRC contract provision and NRC's insist 6nce that the provisions of the contract be enforced, UIIS temiinated the plaintiffs.

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Because Ulls claims that it only fired the plaintiffs because of their failure to meet the height / weight and maximum body fat requirements,'it has impleaded NRC into this action pursuant Rule 14 of the Federal Rules of Civil Procedure seeking indemnification in the event it i.

is held liable. The third-party complaint alleges that if the Court finds that the imposition of the height / weight and maximum body fat requirements were a violation of the ADA, then NRC should be required to indemnify UllS because NRC promulgated the illegal requirements.

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.a DISCUSSION 1.

NRC's \\ lotion to Dismiss Third-Party Comolaint A.'

Standard of Review on n.\\ lotion to Dismiss l

It is well established that a motion to dismiss under Rule 12 bnN of the Federal Ru!;< of

- Ci(il Procedure should be denied unless it appears bepnd JouS: that the n!.dnuff ean pra e no set of facts in support of her claim which would entitic her to relief. M Conics v Gibson. e.s.s U.S. 41. 45-46 (1957). How ever. the function of a motion to dismiss for failure to state a claim is to test the legal suf6ciency of the complaint, and not the facts that support it. Eqs Neitreke 1 Wilhams,490 U.S. 319,326-27,109 S.Ct. I827,104 L.Ed. 33S(1989). Thus, in determining l

whether to dismiss the complaint. this Court must view the n ell-pleaded material allegations in a light most favorable to the plaintiff, with the alleged facts accepted'as true. Les Chisolm v.

TranSouth Financial Com.,95 F.3d 331,334 (4th Cir.1996); sss n!se 5A Wright & Miller, Federal Practice and Procedure: Civil 2d, # 1357, at 304-21 (1990).

B.

Analvsis Here, NRC has moved to dismiss the third party complaint on the grounds that the ADA and the Rehabilitation Act of1974 do not provide for indemni6 cation. NRC argues that 2

because there is no provision in either of these st'atutes by which an employer who allegedly

' While the Court is aware that its decision on UllS's summaryjudgment motion may deem NRC's motion moot, the Court believes that this motion contains important issues that should be decided upon independent of the summaryjudgment motion.

2 Although plaintiffs have brought this action under the ADA. the NRC, as a federal governmental agency, may only be sued for disability discrimination under the Rehabilitation Act. Sss 29 U.S.C.. } 794(a).

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e dis'criminates can obtain indemnity, the third-pany complaint should be dismissed under Rule 12(b)(6).

~ UllS. on the other hand. states that the ADA and the Rehabilitation Act implicitly provide a right ofind mnitication since both statutes specifically prohibit federal agencies from engaginj in disenmination and both explicitly waive the govemment's immuni 3 from suit. This. l'Ils contends, gives it a right to indemnitication. How ever, Ulls has not directed the Coun to any language in th' Rehabilitation Act or the ADA that specifically provides a right of e

indemnitication. nor has it provided any case law that has held there is such a right. UllS also has not identified any contractual agreement between it and the NRC that provides for indemnitication under these circumstances.

Nes enheless, the Supreme Coun's decision in Northwest Airlines. Inc. v. Transnort Wo'rkers l'nion of America is fatal to UllS's position. 451 U.S. 77,101 S.Ct.1571,67 L.Ed.2d l

750 (19SI) In Northwest Airlines, the Supreme Court held that an employer found liable to its I

employees under the Equal Pay Act of 1963c29 U.S.C. { 206(d). and Title VII of the Civil L

Rights Act of 1964, has no statutory or common law right to contribution from unions which L allegedly bear partial responsibility for the statutory violations. M. at 9S.101 S.Ct. at 1584. The.

' Court stated that an employer's right to contribution could only arise under two theories: (1) as an implied right of action under the statute;' or (2) under federal common law. M. at 90,101 I

. S.Ct.' at 1580. ' In' determining whether there was an implied right of action, the Coutt examined

the " language of the statute itself, the legislative history, the underlying purpose and structure of the statutory scheme, and the likelihood that Congress intended to supercede or to supplement existing state remedies." M. at 91,101 S.Ct. at 1580. However,it found no manifestation of a 4

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i congressional intent to create an implied right to contribution under Title \\'ll or the EPA. With 1

l regard to the existence of a right under federal common law or whether one should be created.

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. the Court expressly declined to " add a [ common lau } right to contnbution to the s:ata:or, nght>

Lthat Congress created in the Equal Pay Act and 1itle \\'!!! M. at OS.101 S Ct at if u T Court stated that Tuie \\'ll constitu:es 'a comprehenshe :eg:si.uh e sche: e :na: ine.cJ:

4 integrated sy stem for enforcement." jj. at 9.161 S.Ct. at ;554. and * [:]he Judiciary may na "

the face of such comprehensive legislative schemes fashion new remedies that n4.rht upset carefully considered legislative programs." M. Accordingi), the Court concluded that there is na right of contribution under Title \\'ll or the EPA.

Although Northwest Airlines did not address whether a right ofindemni6 cation exists under the ADA. this Court 6nds the reasoning of the Supreme Court's decision persuasive and suf6ciently broad to preclude UllS from impleading NRC for indemni6 cation. The Court has i

found no language in the ADA from which an express or implicit right to indemni6 cation can be based, and it will not attempt to fashion a common law cause of action..\\loreover. in the cases since Northwest Airlines, courts have essentially applied a blanket prohibition against indemnity and contribution under federal civil rights statutes that do no speci6cally provide for such. Those

- courts have extended the rationale in Nonhwest Airlines to actions for indemnity as well as l

contribution. Srs s.g Anderson v. Intemat'l Brotherhood of Electrical Workers,751 F.2d 546, 54S-49 (2d Cir.1984)(no right to indemnification or contribution under Title VII). It has been applied to third party actions against parties other than unions. Sss Germann v. Pekow,531 F.Supp. 355,356 (N.D.111.1981) (following Northwest, third party complaint by employer against insurer that provided allegedly discriminatory group life insurance plan to employees was 5

e dismissed). And it also has been applied to cases brought under the ADA. St.s Lane v l' S.

i Sic.c1, S71 F. Supp.1434,1436-37 (N.D. Ala.1994)(fmding Northwest to be controlling.

particularly in light of the ADA's enforcement procedures bemg identical to those set forth in Title Vll. and given that Congress enae:ed ne ADA w ell aser :he Suptre Cour: dee Jed -

i Northu ei.D Accordmgly. this Cou : hd.Js as a ma:ter 0: !au tha: there is no ugP :0 I

indemnitication under the ADA. and as such. NRC's motion to dismiss the third party comp!.iin; will be granted.

II.

lllIS's TIotion for Summnrv,ludement Before the Court reaches the substance of UllS's summary judgment motion. UllS's asserted defense will be addressed. UllS argues that it should not be held liable for any discriminatory acts based on plaintitTs' terminations because it was simply following NRC's requirements set forth in their contract. What UllS essentially argues is that it did not have the requisite intent to discriminate against plaintiffs based on their weight, but rather was adhering to

- a stipulated condition of contract. This defense however, has been rejected in other contexts.

'A' number of courts have held in the context of discriminatory union practices imposed on

'an employer that "no agreement between a company and a union, even if arrived at as a result of collective bargaining negotiations, can be used as a defense by a company to the statutory requirements." Hodeson v. Saener. Inc.,326 F.Supp. 371 (D.Md.1971). ;1ff.d,462 F.2d 180 (4th Cir.1972). Sss ab.o Grant v. Bethlehem Steel Coro.,635 F.2d 1007,1016 (2d Cir.1980)

"(" Union activity cannot strip individual employees of the opportunity to seek vindication of their statutory entitlement in court. Rights established under Title VII and the Equal Pay Act are 'not rights which can be bargained away either by a union, by an employer. or by both acting in 6

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concert.'")(citations omitted); Robinson v. Lorillard Corn.,444 F.2d ~91. T99 (4th Cir.);

l Williams v. Owens-illinois. Inc. 665 F.2d 91S. 926 (9th Cir.19S2): Secretan of Labor. L1 S.

I Dent of Labor v Washington Hosnital 4 5 F.Supp.1242 IW.D. Pa 19%

.\\loreover, the ADA spbcitically imNses liability in the case w here an emp!os er participates "in a contractual or other arrangement or rela:!anship tha: w ine c6ce: s/ s dtee: u a covered entity's qualitied applicant or employee with a disability to the discrimination prohibited by this subchapter." 42 U.S.C. 512112(bh2); 510 allo Piauard v Citv of East Peona.

SS1 F. Supp. I 106. I124 (C.D. Ill.1995) (explaining that "(s]ection 12 i 12ib h2 i u as merely intended to prohibit an entity from doing through a contractual relationship what it may not do directly"). This section of the ADA envisions'the very situations that were before those courts in

-the union cases an employer claiming that it was contractually bound to discriminate.

However, there is a material difference that renders both the case law and s 12112(b)(2) inapposite to the case at bar; simple obesity has not definitively been held to be a covered disability under the ADA.3 This fact alone distinguishes this case from the others. In the union cases. the 3 While the ADA clearly does not provide protection for those who are merely overweight, it is not as clear whether obesity falls with the statutes' protected disabilities. Some courts have consistently rejected obesity as a disability protected by the ADA. Sig Torcasio v.

Murrav,57 F.3d 1340,1354 (4th Cir.1995) (having reviewed recent case law, the court found that obesity alone is not a disability under the ADA); Smaw v. Virginia Deo't of State Police, S62 F.Supp.1469,1475 (E.D. Va.1994) (holding that "the case law and the regulations both point unrelentingly to the conclusion that a claim based on obesity is not likely to succeed under the

ADA"); hgl ss.t Cook v. Rhode Island. Deot. of Mental Health. Retardation. and Hosos.,10 F.3d 17 (1st Cir.1993) (ruling that being morbidly obese is a covered disability under the Rehabilitation Act). Moreover, the regulations that implement the ADA state that "except in rare circumstances, obesity is not considered [a disability)." 29 C.F.R. app. p 1630.2(j)(1995).

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discriminatory conduct in question was based on obviously suspect classitication, race or gender.

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Whereas here, whether it is a violation of the ADA to make an adverse employment decision i

based on an employee's weight is not as cicar In fact, when the Court asked w hether UllS had thought that its terrainations n cre.un:av.:. n res;vnded th.:t it did not. Th:s 5emg 50 OcCou-

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belie. es th.a thu defense may bc :m osd.: u i noa:

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A.

Standard of Review on Summarv Judgment Rule 56(c) of the Federal Rules oiCivil Procedure provides that summarvjudgment ui!!

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be granted when no genuine disput' of material fact exists and the moving party is entitled to e

. judgment as a matter oflaw. Anderson v. Libertv Lobbv. Inc.,477 U.S. 242. 250 (19S6). While the evidence of the non-movant is to be believed and alljustifiable inferences drawn in his or her fm or. a party cannot create a genuine dispute of material fact through mere speculation or

-compilation ofinferences. Runnebaum v Nationsbank of \\fd. N A.,123 F.3d 156,164 (4th Cir.

- 1997) teiting Anderson v. Libertv Lohhv. Inc. 477 U.S. 242,255 (19S6); Beale v. Hardv, T/69 F.2d 213,214 (4th Cir.19S5)). To defeat such a motion;the party opposing summaryjudgment

- must present evidence of specific facts from which the fmder of fact could reasonably find for him or her. Anderson,477 U.S. at 252; Celotex Coro v. Catrett,477 U.S. 317,322-23 ('1986).

" Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just.

speedy and inexpensive determination of every action."'.Celotex,477 U.S. at 327 (citations omitted).

In ' determining whether genuine and material factual disputes exist, the Court has review'ed the parties' respective memoranda and the many exhibits attached thereto, construing 8

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1,7 all facts, and all reasonable inferences drawn therefrom. in the light most favorable to the non-movants. Matsushita Elec. Indus. Co. v. Zenith Radio Com. 475 U.S. 574. 5S7-SS (19S6).

Since the matter is before the Court on UllS's motica for summary judgment. " plaintiffs's ersion of the facts must be presented where the parties versio:3 coni!!ct. at least to the degree th :

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-[their) allegations base supratt m M 'avits. depositions or other documeman e :dence.'

I Paroline s. Unists Com., S M E2 f 100,102-103 t4th Cir.1959). vacated in nart en c!hn grounds 900 F.2d 27 (4th Cir.1990).

B.

Analvsis Ulls moves for summaryjudgment on the grounds that plaintiffs are not disabled under the'ADA nor did UllS " regard them" as being disabled. UllS asserts that it never regarded the plaintiffs as having asj physical impairment based on their weight. Instead. UllS states that it terminated plaintiffs solely because they failed to meet the NRC-imposed height weight and maximum body fat standards. Further, UllS argues that it never had any problems with the plaintiffs' work pere :, nance, in fact. UllS admits in its memorandum that it " believes that the plaintiffs could have continued to work at the NRC facility. if NRC had not imposed a specific and stringent height / weight and body fat requirements [ sic) as a condition' of continuing employment." (Def.'s Reply at 5).

The plaintiffs argue, however, that their termination was in violation of the ADA because UllS " regarded them" as disabled. Plaintiffs assert that while they are not " disabled" within the meaning of the ADA. they were regarded or perceived by UllS as suffering from the physiological disability of morbid obesity, and that they were terminated based on this 9

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To establish a prima facie case of discrimination under the ADA using circumstantial evidence, plaintiffs must show that they: (1) were disabled as that tenu is defined by ADA: 12 were quali0ed. with or_without accommodation. for their positions: <31 were subject to aJs ere employment action; and (4) were replaced by nondisabled persons or v.ere :reated less fawrabh than nondisabled employees. Hainerin v Abacus Tech Com.12S F.3J 191.197 4th Cir.

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1997). Without assessing whether the height.' weight and body fat requirements were reasonable,' it appears that plaintiffs were qualiDed for their positions tthe second prong).

Further, there is no dispute that they were terminated (the third prong), and that they were replaced by persons not overweight according to NRC standards (the fourth prong). Thus, the only question is whether the Orst prong can be satis 5ed.

Under the ADA, an individual is considered to have a disability if he or she has "a physical or mental impaimient that substantially limits one or more of the major life activities of such individual," or has "a record of such an impaimient," or is " regarded as having such an impaimient." 42 U.S.C. s 12102(2). The temi " major life activities" has been deDned as

" functions such as caring for oneself, performing manual tasks, walking seeing hearing, speaking, breathing, teaming, and working." 29 C.F.R. } 1630.2(i). The term "substantially limits" means:

• Plaintiffs have only identined one plaintiff that UllS actually labeled " obese," Peggy Dolford.' (Sss Pl's Opp.).

i 5 The issue of whether NRC's height / weight and body fat requirements were

" reasonable," in terms ofits business necessity, has not been developed by the record, nor was it raised by the plaintiffs in their opposition memorandum or at the hearing.

10 p

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I signi6cantly restricted in the ability to perfomi either a class ofjobs or a broad range ofjobs in various c'isses as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particularjob does not constitute a substantial limitation in the maior life activity of working.

29 C.F.R. ( 1630.2ti)(3 Hil. Further. courts de6ning " subs:antially limits" has e e.sp'ained that h

' requires that a plaintiff show that the employer belies ed the plaintiff to be incapable of n orking l

at any number ofjobs. not simply incapable of perfomiing the duties oione particularjob. Sc; 11 maw v. Virginia Dent. of State Police, S62 F. Supp.1469,1474 75 (E.D. Va.1994)

S l

(holding that plaintiff must show that employer regarded her as incapable of performing duties in l

the entire Seld oflaw enforcement, not just the duties of an active state trooper)..

Finallv, as for "heing regarded as having such an impaimient," the ADA regulations describe this as a plaintiff who:

I (1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or-(3) Has none of the impairments defined in paragraph th)(1) or (2) of this section but' is treated by a covered entity as having a substantially hmiting impaimient.

l 29 C.F.R. # 1630.2(1). By including those regarded as being impaired in its definition of a disabled individual, it is clear that " Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that l

flow from actual impairment." School Board of Nassau County v. Arline,480 U.S. 273,284, t.

f sit aha Vande Zande v. Wisconsin Deot. of L

_ 107 S.Ct.1123,1129,94 L.Ed.2d 307 (1987);

Admin.,44 F.3d 53S. 541 (7th Cir.1995); Howard v. Navistar Int'l. Transoortation Coro. 904 F.Supp. 922,930 (E.D.Wis.1995). As the Supreme Court noted,"(s]uch an impairment might 11 L,

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not diminish a person's physical or mental capacities, but nevertheless substantially limits that person's ability to work as a result of the negative reactions of others to the impaimient." Arline

)

4SO U.S. at 283,107 S.Ct. at i12S-29. Thus. if plaintiffs can show that UllS terminated them c

)

because of a perceived disability based en ms th. fear or.e:ereotype. despite w hether or no: the"-

actual physical or memal conditions wou!J be considered.rdisaN!in under :he f.rs: or second part of the dc6nition, they will satisfy the " regarded as" part of the dc6nition of disability.

E E O C. v. Texas Bus Lines. 923 F. Supp. 965,975 (S.D. Tn.1996). If UllS cannot articulate a nondiscriminatory reason for its temiinations, an inference that it is acting on the basis of my th.

' fear or stereotype can be drawn. Id.; ses alig 29 C.F.R. Pt.1630 app. s 1630.2(1).

In order to satisfy the Grst prong of a prima facie case of discrimination under the ADA under the perceis ed disability theory, plaintiffs must show either that (1) w hile they had a physical or mental impairment, it did not substantiaily limit their ability to perform major life activities, or attematively, that (2) they did not suffer at all from a statutorily prescribed physical or mental impairment, however, the defendant employer treated the impaimient, whether actual or perceived, as substantially limiting one or more of their major life activities. Sss C.ngh,10 F.3d at 18-19. Here, plaintiffs have chosen to proceed under the second alternative. This alternative allows plaintiffs to assert a charge of discrimination on the basis of their weight, despite the fact that obesity may not be a covered disability under the ADA. Sgs Nedder v.

I Rivier College,944 F. Supp.111,11 S-19 (D. N.H.1996) (ruling that the plaintiff, who had failed f

._to prove that her obesity was a disability within the ADA, still could prove that she was

" regarded as disabled" by her employer).

Therefore,in order to prevail on their claims, plaintiffs must show that UllS regarded 12 i

c v

e I

them as substantiallyllimited in their ability to work in the entire field of security. However. all i

that plaintiffs have shown is that they were terminated because they failed to meet NRC's height weight and body fat requirements. There has been no evidence produced that Ulls found-

'he plaintiffs to be untit to perfomi security at non-NRC locations. or tha: Ulls regraJeJ t

plaintiffs as unable to work in the entire tield of security guarJ sen ices A: the hearing, v.her the Court asked plaintiffs' counsel what they had produced in the way of evidence proving that UllS regarded them as disabled, counsel pointed to letters written by UllS to the individual plaintiffs'in 1995 'and 199S. These letters were either signed by UllS's human resources manager or the company president, and basically infomied the recipients of the SRC requirements and that they were "found to be both ovenveight and having a body fat content higher than the l

specilled ' maximum allowable percentage." (PI's Opp., E.s.1). In addition, the earlier letters required the recipients to make "significant, but safe, weight loss," and the later letters informed them that they were being tem 1inated because the failed to meet the NRC height, weight and body fat standards. (ht., Es. 2). Thus, at best, plaintiffs have proved that they were regarded as incapable of being security guards at the NRC. This evidence alone does not satisfy the first prong of their claim of discrimination, in that they were " regarded as" disabled under the ADA.

and therefore cannot save the plaintiffs from summaryjudgment."

' With regard to plaintiffs' other argument that the physical examinations that they 7

l undenvent in 1995 and 1998 were in violation of the ADA, sss 42 U.S.C. s 12112(d)(4)(A),

plaintiffs have not developed sufficient evidence to establish any violation and survive summary judgment.' Moreover, the Court believes that having to undergo a physical examination is reasonably related to the position of security guard. Physical skills such as being able to defend and protect oneself, standing on one's feet for up to eight hours, and exercising great endurance without tiring quickly, are all job-specific concems that may be determined by a physical examination.

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I Even assuming arcuendo that plaintiffs were able to establish their prima facie case. L'IIS has articulated a legitimate, nondiscriminston reason for plaintiffs' termination; they were i

simply adhering to NRC's mandated requirements. k Evans t Technologies Annlications &

t Sen Co. SO F..'d 954. 9M) (4th Cir.1995). Although M:s appears circular. plamtiffs ha. e na.

i pros eJ that L'llS's reason is pretatual. ice \\'auahn '. \\teraHeahn Cm nx'et inc :'5 F '

197. 202 (4th Cir.1998). Accordingly. L'IIS's motion uili be granted.

A separate Order consistent with this.\\lemorandum Opinion w ill follow.

i

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1 *N ~N Date Alexai;(der Williams, Jr.

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L'nited States District Court Jude' l

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l IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF 51ARYLAND SOUTHERN DIVISION PEGGY DOLFORD, et al.

Plaintiffs u.

l'NITED INTERNATIONAL Civil Action No. AW-98-3984 INVESTIGATIVE SERVICEF. !NC.

Defendant /

Third Party Plaintiff j

V$.

SHIRLEY JACKSON, Chairperson, j

NUCLEAR REGULATORY CO31)llSSION Third Party Defendant ORDER in accordance with the Memorandum Opinion,it is this 9 b day of February,1999 by the United States District Court for the District of Maryland, ORDERED:

1.

That the Third-Party Defendant's, Nuclear Regulatory Commission, Motion to Dismiss

. Third-Party Complaint [11-1] BE, and the same hereby IS, GRANTED; 2.

That the Defendant's, United International Investigative Services, Motion for Summary Judgment (12 1] BE, and the same hereby IS, GRANTED; 3.

That this case is hereby CLOSED; and 4.

That the Clerk mail copies of this Memorandum Opinion and Order to all parties of record.

I L

r b dddUd$cEL C

Alexandei Williams, Jr.

United States District Court Ju ge

1 1

Timbers v. United States, No. MJG 99 CV 501 (D. Md., filed March 3,1999)

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UNITED STATES DISTRICT COURT.

DISTRICT OF MARYLAND MJG 99 CV 601 CpfM AA TA k rr CIVIL ACTION Plaintiff (s) a on Leomord 1%d Fe Us(M,V&yia ? Z o H3 w.

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You are hereby%x. 'poned and required to serve upon Plaintiff's attorney whos sumr L

. E Asrechte.s, O C 433 4 M ~h a e7 Awrvs address is

%%esla, M u > ls u d '2 o g i y O

an answer to the complaint which is herewith served upon you, within days after service of this summons upon you, exclusive of the day service. if you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

FRANK L. MONGE. Clerk

/

De'puty dierk' N

DATE:

NOTE: THIS SUMMONS IS ISSUED PURSUANT TO RULE 4 OF THE FEDERAL RULES OF civil PROCEDURE, AND OR THE MARYLAND LONG ARM STATUTE.

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s e i IN THE UNITED STATES DISTRICT COURT.-

FOR THE DISTRICT OF MARYLAND l

Southern Division !".4 -3 A m.

l-CYNTHIA ADA TIMBERS

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2028 Leonard Road Falls Church, Virginia 22043 Plaintiff, V.

Civil Action No.:

UNITED STATES OF AMERICA Serve On General Counsel Legal Claims Department United States Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20857 Defendant, and TECOM INCORPORATED 5608 Park Crest Drive Austin, Texas 78731 Serve On:

Resident Agent The Corporation Trust Incorporated 300 East Lombard Street Baltimore, Maryland 21202 Defendant.

LINE 4

WILL THE CLERK OF THE COURT please file the enclosed action.

Enclosed'please find our Firm's check in the amount of $150.00 representing filing fees.

Please return the j

summonses and the enclosed copies to the undersigned for j

service.

A service copy is enclosed for Defendant Tecom l

Incorporated.

A service copy is also enclosed for Defendant O

9 l-United States of America, and a third service copy is attached for service upon the United States Nuclear Regulatory

. Commission, in accordance with Fed.

R.

Civ.

P.

4 (h) and (i).

Two service copies are enclosed for the Attorney General of the United States of America and the United States Attorney for the District of Maryland.

Thank.you.

{

Respectfully submitted, ZAKROFF & ASSOCIATES, P C.

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' Robert Joel Zakroff

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4337 Montgomery Avenue '-

Bethesda, Maryland 20814 (301) 986-5770 Federal Bar #00867 l

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IN THE UNITED STATES DISTRICT COURT I

FOR THE DISTRICT OF MARYLAND,S'3 A ']

I-Southern Division 73 CYNTHIA ADA TIMBERS 2028 Leonard Road Falls Church, Virginia 22043 D y - _.. _

Plaintiff, i

l v.

Civil Action No.:

UNITED STATES OF AMERICA l

Serve On:

l General Counsel Legal Claims Department United States Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20857 Defendant, a

and TECOM INCORPORATED 5608 Park Crest Drive Austin, Texas 78731 Serve On:

Resident Agent The Corporation Trust Incorporated 300 East Lombard Street Baltimore, Maryland 21202 Defendant.

COMPLAINT AND ELECTION FOR JURY TRIAL l

The Plaintiff, Cynthia Ada Timbers, by and through her attorneys, Robert Joel Zakroff, Jonathan Silverman, Jeffrey Fenster, and Zakroff & Associates, P.C.,

brings this action against the Defendants, the United States of America and Tecom Incorporated, and as for her cause of action states as follows:

l

[

JURISDICTION 1.

That this action arises under the Federal Tort Claims Act, 28 U.S.C.

S2671 et sea. (hereinafter referred to as the "FTCA"),

in order to remedy damages done to the Plaintiff, Cynthia Ada Timbers (hereinafter " Plaintiff"), and under Maryland common law for damages done to Plaintiff Timbers due to Defendant Tecom Incorporated's -(hereinaf ter referred to as " Defendant Tecom") employee's negligence, and under Maryland common law for damages done to Plaintiff Timbers due to the Defendant United' States Government's (hereinafter referred to as " Defendant Government") breach of the standard of care owed to Plaintiff Timbers as a business invitee.

2.

That jurisdiction over the claims stated in this Complaint is conferred by 28 U.S.C.

S1331, 51332, and S1346(b).

VENUE 3.

That venue is proper in t.his Court under S1391(b),

in that jurisdiction is based on diversity of citizenship, the fact that the United States Government has been named as a Defendant, and that the cause of action on which this action is based arose in this judicial district.

PARTIES 4.

That Plaintiff Timbers is a

citizen of the Commonwealth of Virginia, and at all times relevant to this matter, was a citizen and resident of the United States of 2

I

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l.

America.

-5.

That Plaintiff

Timbers, at all times relevant hereto, _

employed as a

security guard with United was

' International Investigative Services at the United States Nuclear Regulatory Commission, located at 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857.

6.

That Defendant

.Tecom is a

Texas corporation qualified to do business in the state of Maryland, and at all times relevant to this matter, was under contract to perform janitorial services at the United States Nuclear Regulatory Commission, located at 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857.

7.

That Defendant United States Government (hereinafter refrred to as ' "Deferidant Government"), at'all times relevant to.this. matter, had entered into a contract with D.efendant '

Tecom, in order for Defendant Tecom to perform janitorial

~

services at the United States Nuclear Regulatory Commission, a

located at' 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857 ADMINISTRATIVE PROCEEDINGS 8.

That on or about August 24, 1998, Plaintiff Timbe.rs filed'a timely Claim for Damage, Injury, or Death, pursuant to

~2 8 : U. S.' C.

2671 et sea.,

with the Office of the General

- Counsel for the United States Nuclear Regulatory Commission.

A ' copyi of this Claim is attached hereto and incorporated

~

herein'as Exhibit A.

I 3

l 9.

That on or about September 16,

1998, the United States Nuclear Regulatory Commission's Office of the General Counsel denied Plaintiff Timbers' claim for Damage, Injury, or Death under the FTCA.

A copy of said notice is attached hereto and incorporated herein as Exhibit B.

10.

That pursuant to 28 U.S.C.

52675, Plaintiff Timbers considers said denial as a final-denial of her claim.

COUNT I (Neelicence - Defendant Tecom) 11.

That on or about. September 11,

1996, Plaintiff Timbers was a business invitee of the Defendant Government, as she was employed as a

security guard for the United International Investigative Services (UIIS),

a Texas' corporation qualified to do business in Maryland that

]

contracts with the United' States Nuclear Regulatory Commission in order to provide security services at 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857.

12.

That at approximately 6:30 p.m.

on September 11, 1996, Plaintiff Timbers requested relief from her security post so that she could go to the ladies room located on the P-1 Level of the White Flint I Building.

13.

That Plaintiff Timbers walked down the hallway through the double doors and made a left into the hallway l

where the restrooms are located.

While in the hallway, j

Plaintiff Timbers observed two (2) gentlemen approaching her with mops and buckets who she knew te be agents, servants, and/or employees of Defendant Tecom, the company that performs 4

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janitorial services.for the United States Nuclear Regulatory l

Commission at 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857.

-14.

That as the two (2)

agents, servants, and/or employees of' Defendant Tecom approached Plaintiff Timbers, she noticed that both of their buckets were filled with water, and that they were both pushing their buckets with the top handles of their mops.

Plaintiff Timbers walked to the side of both of these agents, servants, and/or employees as she made her way down the hallway to the ladies room.

15.

That Plaintiff Timbers was in the ladies room for only a couple of minutes.

Plaintiff Timbers then exited the ladies room, and headed back down the hallway to her security post.

Plaintiff Timbers walked approximately eight (8) feet down the hallway, when she slipped and fell due to a small puddle of-water that was on the hallway floor nearby the soda vending machine, where the two (2) agents, servants, and/or employees of Defendant Tecom had been just a couple of minutes earlier with their buckets full of water.

16.

That Plaintiff Timbers had felt her right leg go out from under her as she slipped and fell on the wet floor.

Plaintiff Timbers' left leg then went out from under her, and as Plaintiff Timbers fell to the floor, she heard her right knee " pop" and she'could not get back to her feet, as her l

l right knee would not " pop" back into place.

17.

That Plaintiff Timbers was unable to get back up on 5

t L

1 her feet for a period of five (5) to seven (7) minutes.

Then, Plaintiff Timbers' right knee " popped" back into place, and she was able to get back to her feet with the assistance of both Captain Raymond Marshall and Officer Donna Latson.

Plaintiff Timbers was then able to limp back to her security post and complete her tour of security duty.

Plaintiff Timbers then drove herself back home in her automobile, and then her husband drove her to her medical provider, Kaiser-Permanente in Falls Church, in order for her to receive medical treatment.

18.

That Defendant Tecom and its

agents, servants, and/or employees owed Plaintiff Timbers a duty to keep the floors clean and free of slippery substances, so as to avoid foreseeable risks of harm in White Flint I Building.

Their duty included, but was not limited to: protecting the public from reasonably foreseeable risks of harm in White Flint I Building; conducting periodic inspections to make sure the

. floors were clean and free of slippery substances; properly I

training, monitoring, and supervising its agents, servants, and/or employees as to how to properly inspect and maintain the White Flint I

Building; and warning the public of reasonably foreseeable dangers resulting from recently cleaned l'

floors, or from watery substances that spilled from the l

l buckets of agents, servants, and/or employees of Defendant Tecom onto the hallway floors of the White Flint I Building.

19.

That Defendant Tecom, through its agents, servants, 6

e

I and/or employees breached its aforementioned duties when it:

f ailed to protect the public from reasonably foreseeable risks of harm'in White Flint I Building; failed to conduct periodic inspections to make sure the floors were clean and free of slippery substances; failed to properly train, monitor, and supervise its agents, servants, and/or employees as to how to properly inspect and maintain the White Flint I-Building; failed,to warn the public of reasonably foreseeable dangers resulting from recently cleaned

floors, or from watery substances that spilled from the buckets of agents, servants, and/or employees of Defendant Tecom onto the hallway floors of the White Flint I Building; and created and/or allowed to exist a situation which caused Plaintiff Timbers to lose her balance, fall, and injure herself.

20.

That as a direct and proximate result of the Defendant Tecom's aforementioned breach, Plaintiff Timbers suffered permanent and serious bodily injuries, including, but not limited to, severe injuries to both of her knees and legs, and injury to her back.

21.

That as a result of her personal injuries, Plaintiff Timbers has incurred and continues to incur damages whi.ch include, but are not limited to: past, present, and future medical expenses; past, present, and future mental anguish and emotional distress; past, present, and future lost wages; and past, present, and future pain and suffering.

22.

That Plaintiff Timbers was in no way contributori1y 7

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i negligent, nor did she assume the risk of her injuries.

1 i

WHEREFORE, the Plaintiff Cynthia Ada Timbers, prays for I

judgement in her favor against the Defendant Tecom a

i Incorporated, and that she be awarded compensatory damages in l

the amount of Five Hundred Thousand Dollars

($500,000.00),

j I

plus interest and costs of this suit, and any other relief the j

i Court deems just and proper.

]

e COUNT II (Premises Liability - Defendant Government) l 1

23.

That Plaintiff Cynthia Ada Timbers incorporates the allegations of Paragraphs one (1) through twenty two (22) and further states:

24.

That Plaintiff Timbers was a business invitee of the Defendant Government.

)

25.

That it was the duty of the Defendant Government to exercise reasonable and ordinary care to protect business invitees against known or should be known dangers at the United States Nuclear Regulatory Commission at 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857.

26.

That

'the Defendant Government breached its aforementioned duty when it failed to protect Plaintiff Timbers, a business invitee, from known or should be known dangers at the United States Nuclear Regulatory Commission at 11555 Rockville Pike, White Flint I Building, Rockville, Maryland 20857.

27.

That as a direct an'd proximate result of the Defendant Government's aforementioned

breach, Plaintiff 8

i

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l l

Timbers suffered permanent and serious bodily

injuries, including, but not limited to, severe iniuries to both of her l

knees and legs, and injury to her back.

28.

That as a result of her personal injuries, Plaintiff Timbers has incurred and continues to incur damages which include, but are not limited to: past, present, and future medical expenses; past, present, and future mental anguish and emotional distress; past, present, and future lost wages; and past, present, and future pain'and suffering.

29.

That Plaintiff Timbers was in no way contributorily negligent, nor did she assume the risk of her injuries.

WHEREFORE, the Plaintiff Cynthia Ada Timbers, prays for judgement in her favor against the Defendant United States Government, and that she be awarded compensatory damages in the amount of Five Hundred Thousand Dollars ($500,000.00),

plus interest and costs of.this suit, and any other relief the Court deems just and proper.

Respectfully submitted, ZAKROFF & ASSOCIATES, P.C.

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Robert Joel Zdkrof f \\

4337 Montgomery Avenue Bethesda, Maryland 20814 (301) 986-5770 Federal Bar #00867 I

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f JURY DEMAND The Plaintiff respectfully quests a trial by jury as to all issues herein presented.,

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CIVIL PENALTY FOR PRESENTING

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THE CLAiht MUST BE PRESEstfED TO TM APPROPRIATE PEDERAL AGENCY' WITHIN TWO YEARS APTER THE CLAN ACCIEES Any newuctens or moormamon necessary a the ereseresen of yew casm we me emenee. upon roguest. Dy one once mecased in nom #1 en ene reverse spee.

101 in aieport of ensne for senage so presorty when nsa heen or em no smoea roguessens pertenne to caems asseries unser tne Feeerst Tort Clans Acteconomessy reseren, the asunant stoids summa at enest two hemsee egned i

l r ce soung m Tees 28. Coos of Feoeral Repueshons. Part 14.

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sie eacn esency.

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I I

l CYNTEIA A. TIMBERS CLAIM FOR DAMAGE, INJURY, OR DEATH

)

SUPPLEMENTAL PAGE 1 TO FORM 95 QUESTION #8. Basis of Claim (State in detail the known facts and circumstances attending the damage, injury, or death, identifying persons and property involved, the place of occurrence, and the cause thereof) (Use additional pages if necessary.)

ANSWER: Claimant was employed as a security guard for the United International Investigative Services (UIIS),

a company

'that contracts with the United States Nuclear-Regulatory Commission for I

l security services.

At approximately.6:30 p.m.

on September 11, l

1996, Claimant Cynthia Timbers requested relief from her post so i

that she could go to the ladies room located on the P-1 Level of the White Flint I Building.

Claimant went down the hallway through the double doors and made a left into the hallway where the

- restrooms are located.

In this hallway, claimant observed two non-caucasian gentlemen approaching her with mops and buckets, who she knew to be Tecom, Inc. employees, the company that performs the j

cleaning services for the Nuclear Regulatory Commission.

As the two Tecom, Inc. employees approached the Claimant, she noticed that both of their. buckets were filled with water, and they l

were both pushing their buckets with the top handles of their mops.

i Claimant walked to the side of both of these Tecom employees as she made her way to the ladies room.

Claimant was in the ladies room for only a couple of minutes.

She then exited the ladies room,.and headed down the hallway back to her post.

She walked approximately 8 feet down the hallway, when she slipped and fell due to a small puddle of water that was on the floor nearby the soda' vending machine, where the two Tecom employees had just been at a couple of minutes before with their buckets full of water.

Claimant felt her right leg go out from under her as she slipped and fell on the wet floor.

Her left leg then.went out behind her, as if she were doing a " split" with her legs.

As the Claimant fell to the floor, she heard her right knee " pop" and she could not get back.up to her feet, as her right knee would not

" pop" back into place.

. Claimant was unable to'get up from the' floor for a period of five (5) to seven (7) minutes.

Then, her right knee " popped" back into place, and she was able to get back c

to her. feet with the assistance of both Captain Raymond Marshall l

and Officer Donna Latson.

Claimant then was able to limp back-to her post and finish her tour of duty.

She then drove herself home, j-

-and then her husband drove her to Kaiser-Permanente in order for her to be treated.

l i-

,4 V.

t CYNTHIA A. TIMBERS CLAIM FOR DAMAGE, INJURY, OR DEATH SUPPLEMENTAL PAGE 2 TO FORM 95 i

QUESTION #10.

State nature and extent of each injury or cause of death, which forms the basis of the claim.

If other than claimant, state name of' injured person or decedent.

ANSWER:

Traumatic chondromalacia of the patella and lumbar disc herniation.

As a result of this injury, Claimant experiences a constant throbbing pain in both her right and left knee.

For example, she has difficulty climbing steps, getting in and out of her chair, her car, her bed, her bath, and she cannot bend down on her knees without someone being there to help her back to her feet.

She also has trouble sitting or standing for long periods of time without pain, and she routinely cannot walk for more than 5-10 minutes without feeling pain that runs from her lower back down her left leg to her knee which forces her to stop walking.

She has' experienced trouble

sleeping, sexual dysfunction, and cannot perform her housework that she was able to perform before her slip and fall.

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g an ceo UNITED STATES NUCLEAR REGULATORY COMMISSION

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g WASHINGTON. D.C. 20655-0001 a

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3eptember 16, 1998 OFFICE oF THE

GENERAL COUNSEL

$o VIA CERTIFIED Mall-RETURN RECEIPT r

ao Robert J. Zakroff g

Zakroff & Associates 4337 Montgomery Avenue Bethesda, MD 20814

SUBJECT:

TORT CLAIM NO.142 -- CYNTHIA TIMBERS

Dear Mr. Zakroff:

We are in receipt of your letter dated August 24,1998 forwarding a claim for damages in the amount of $1,000,000, on behalf of your client, Cynthia Timbers. This claim is for injuries sustained by your client as a result of a slip and fall which-occurred on September 11,1996 at 1

the One White Flint North building at the U.S. Nuclear Regulatory Commission (NRC). This claim has been processed in accordance with this Agency's procedures that govern administrative claims under the Federal Tort Claims Act (FTCA).'

Liability of the United States under the FTCA requires evidence that the damages or injury in question we caused by the negligent or wrongful act or omission of a Federal employee while acting within the scope of his or her employment..

After reviewing all of the information which you provided in support of your client's claim for damages against the United States, we have concluded that there is no evidence to establish that Ms. Timbers has suffered any injury due to the negligent or wrongful act or omission of any employee of the NRC while acting within the scope of his or her office or employment.

Accordingly, this Agency hereby denies your client's claim.

If you are dissatisfied with the NRC's action on this claim, you may file suit in an appropriate United States District Court not later than six months after the date of mailing of this notification of final denial of your claim.10 CFR 914.37 (1998).

Sincerety, cJ j; I

M CE

~ /Y Y~

L Donald F. Hassell"

(

Assistant General Counsel for Administration

'10 CFR Part 14 (1998)

~