Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—10th Cir.: Former HR generalist failed to exhaust ‘regarded as’ claim before EEOC, (Feb 12, 2025)

By Marjorie Johnson, J.D.

The exhaustion defect in her EEOC charge was “not the omission of a particular turn of phrase or statutory citation.”

A former HR generalist for a county hospital district who claimed the administration engaged in a scheme to have her involuntarily committed due to her purportedly manic condition in retaliation for whistleblowing activity failed to revive on appeal her ADA claim of “regarded as” disability discrimination because the district court correctly concluded she failed to administratively exhaust this theory under the ADA. In a nonprecedential opinion, the Tenth Circuit found that, because her EEOC charge alleged only that she had an actual disability for which she claimed she was owed a reasonable accommodation, it could not be read to have asserted the theory that she was “regarded as” disabled (McDade v. Weston County Hospital District, No. 24-8031 (10th Cir. Feb. 6, 2024, nonprecedential)).

Whistleblowing activity. The employee accepted an offer of employment from Weston County Hospital District (WCHD) in June 2019, and shortly thereafter became the HR generalist. In that role, she allegedly discerned money mismanagement, illegality, and ethics problems. She raised her concerns through the chain of command all the way up to the president of the board of trustees, but the administration allegedly responded by asking her to modify records to cover up what had occurred, but she refused to do so.

Threat of involuntary commitment. On October 14, 2021, a nurse in the office of her primary care physician (who was also employed by WCHD) allegedly contacted her and indicated she was calling on behalf of the doctor to request that she come in for an appointment “to discuss medication and possible concerns with it.” She stated the request as unnecessary, but later that day the doctor appeared at her office and asked to have a confidential conversation, prompting the employee to record the conversation.

After mentioning various confidential facts regarding the employee’s previous treatments, the doctor indicated that WCHD administrators were concerned for her. The employee responded, “No they’re not. They’re so concerned in saving their own (expletive) right now.” The doctor replied that WCHD was probably concerned about both her concerns she presented to the board and also some things she had sad “that would suggest an almost manic.”

The responded that she was “not manic in any way shape or form,” and the doctor agreed, but stated that the administration was “talking about potentially involuntary commitment.” The doctor went on to say that she felt her involvement would be a conflict of interest but suggested that the employee make an appointment so they could adjust her medication as a “good faith measure.” The employee resigned via email that same day.

District court proceedings. She subsequently filed an EEOC charge and, after receiving a right to sue notice, filed this lawsuit alleging a myriad of claims, including constructive discharge and failure to accommodate under the ADA. The court granted the employer’s motion to dismiss in full, concluding amongst other things that her ADA claims due to her failure to plead that she was disabled within the meaning of the ADA.

“Regarded as” theory. On appeal, she abandoned any contention that she plausibly alleged she suffered an actual disability and instead argued that the district court erred by concluding her EEOC charge did not exhaust her ADA claims based on a “regarded as” theory of disability. Accepting her concession and agreeing that she failed to plausibly allege she suffered an actual disability, the Tenth Circuit focused on the issue of whether she exhausted her “regarded as” disabled theory.

The EEOC charge. As part of the analysis, the appeals court reviewed the employee’s EEOC Charge and noted that it contained the following allegations related to the disability element of her discrimination claims:

1. I belong to the protected groups, Christian and an individual protected under ADA.

2. My disability substantially limits a major life activity.

3. I otherwise was qualified for my position and performing the work at a satisfactory level.

4. The employer failed to make a reasonable accommodation where an accommodation would not place an undue hardship on the employer.

Failure to exhaust. The Tenth Circuit rejected the employee’s contention that an EEOC charge like hers which generally asserts the complainant is “disabled” exhausts ADA discrimination claims premised on any one of the ADA’s three definitions of disability. While her charge began by broadly claiming she was an individual protected under the ADA, it then clearly stated that she had a disability that substantially limited a major life activity. The charge further alleged that WCHD “failed to make a reasonable accommodation where an accommodation would not place an undue hardship on the employer.”

Focus on actual disability. However, an employee claiming protection under the “regarded as” definition of disability is not entitled to a reasonable accommodation. Therefore, her charge necessarily focused the EEOC investigation not on “disability” as broadly defined by the ADA, but on the existence of an actual disability for which she claimed to be owed “a reasonable accommodation.” Thus, her charge could not be read to allege the theory that she was “regarded as” disabled, and as such her claim that she was “regarded as” disabled did not fall within the scope of the EEOC investigation which reasonably grew out of the allegations in her charge.

“We do not mean to suggest that to pursue an ADA claim or theory in civil litigation, a plaintiff must expressly invoke a particular legal incantation in the EEOC charge,” explained the Tenth Circuit. The exhaustion defect in her EEOC charge was” not the omission of a particular turn of phrase or statutory citation,” but instead it “unambiguously alleged the existence of an actual disability, and it is otherwise devoid of any facts from which WCHD or the EEOC could surmise that [her] claims rested—either principally or in the alternative—on a theory that she was ‘regarded as’ disabled by WCHD.”

The case is No. 24-8031.

Judge: McHugh, C.

Attorneys: Amanda McDade, pro se. Bradley T. Cave (Holland & Hart) for Weston County Hospital District d/b/a Weston County Health Services.

Companies: Weston County Hospital District; Weston County Health Services

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