Thomas M. Mattice v. Memorial Hospital of South Bend, Inc. 00-1364 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 00-1364 THOMAS M. MATTICE, Plaintiff-Appellant, v. MEMORIAL HOSPITAL OF SOUTH BEND, INC., Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Indiana, South Bend Division Honorable Robert L. Miller, Jr., Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4728 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST 1 STATEMENT OF JURISDICTION 2 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Nature of the Case and Course of Proceedings 2 B. Statement of Facts 3 C. District Court Decisions . . . . . . . . . . . . . . 5 STANDARD OF REVIEW 7 SUMMARY OF ARGUMENT 8 ARGUMENT 8 THE DISTRICT COURT ERRED WHEN IT DISMISSED MATTICE'S COMPLAINT FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF COULD BE GRANTED UNDER THE ADA . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The liberal rules of notice pleading, as stated in Rule 8(a) of the Federal Rules of Civil Procedure, still apply to ADA claims . . . . . . . . . . . . . . . . . . . 8 B. Under the rules of notice pleading, the district court erred in granting Memorial's motion to dismiss Mattice's ADA claims . . . . . . . . . . . . . . . . . . . . . . . 13 CONCLUSION 15 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICETABLE OF AUTHORITIES CASES PAGE(S) Adkins v. Briggs & Stratton Corp., 159 F.3d 306 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 10 Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998) . . . . . . 10, 12 Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . 9 Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998) . . . . . . . 9, 11, 12, 13, 14 Homeyer v. Stanley Tulchin Associates, Inc., 91 F.3d 959 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 15 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) . . . . . . . . 9, 11 Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 7 Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 13 Poindexter v. Atchison, Topeka & Santa Fe Railway Co., 168 F.3d 1228 (10th Cir. 1999) . . . . . . . . . . . . . 12 Scott v. City of Chicago, 195 F.3d 950 (7th Cir. 1999) . . . 7, 9 Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999) . . . . . . . . . . . . . . . 5, 10 STATUTES Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., . . . . . . . . . . . . . . . . . . . . . . . . 1 REGULATIONS 29 C.F.R. § 1630.2(j)(3) . . . . . . . . . . . . . . . . . . . 12 29 C.F.R. § 1630.2(l) . . . . . . . . . . . . . . . . . . . . 12 29 C.F.R. Pt. 1630, App. § 1630.2(l) . . . . . . . . . . . . . 12 FEDERAL RULES Fed. R. Civ. P. 8(a)(2) . . . . . . . . . . . . . . . . . . . 9 Fed. R. Civ. P. 9(b) . . . . . . . . . . . . . . . . . . . . . 10 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 00-1364 THOMAS M. MATTICE, Plaintiff-Appellant, v. MEMORIAL HOSPITAL OF SOUTH BEND, INC., Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Indiana, South Bend Division Honorable Robert L. Miller, Jr., Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency charged with the enforcement of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., and other federal anti-discrimination statutes. This appeal raises an important question concerning the pleading requirements for individuals asserting claims of discrimination under the ADA. Specifically, this appeal raises the question of whether an individual seeking to assert a claim under the ADA must meet a heightened pleading standard instead of simply satisfying the rules of notice pleading set forth in the Federal Rules of Civil Procedure. Because of the importance of the question raised in this appeal to the effective enforcement of the ADA, the Commission offers its views to the Court. STATEMENT OF JURISDICTION The Commission defers to the jurisdictional statements of the parties. STATEMENT OF THE ISSUE Whether the district court erred when it dismissed Thomas Mattice's ("Mattice") complaint for failure to state a claim under the ADA, where Mattice's complaint provided sufficient information to give Memorial Hospital of South Bend ("Memorial") notice of his ADA claims and the grounds on which they rest. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings<1> On June 12, 1998, Mattice filed this action in federal district court, alleging (among other things) that Memorial discriminated against him in violation of the ADA. R.1. On July 2, 1999, Memorial filed a motion to dismiss Mattice's action. R.50-51. Mattice filed his response to Memorial's motion on July 16, 1999, and Memorial filed its reply on July 22, 1999. R.53; R.54. The district court denied Memorial's motion to dismiss on August 3, 1999, but did so without prejudice to allow Mattice an opportunity to file an amended complaint. R.57. Mattice complied, filing an amended complaint on August 10, 1999, in which he renewed his claim that Memorial discriminated against him in violation of the ADA. R.61. Memorial renewed its motion to dismiss on August 30, 1999 (R.64-65), Mattice filed his response to the renewed motion on September 14, 1999 (R.66), and Memorial filed its reply on September 22, 1999 (R.70). The district court granted Memorial's renewed motion to dismiss on January 19, 2000 (R.79), and entered judgment dismissing Mattice's ADA claims with prejudice on that same date (R.80). Mattice timely appealed from the district court's ruling on February 8, 2000. R.81. B. Statement of Facts Plaintiff Thomas Mattice, M.D. began working as an anesthesiologist for defendants Michiana Anesthesia Care, P.C. ("MAC") and Memorial in July 1991.<2> R.61 ¶¶ 4, 7. In approximately January 1995, Mattice "was hospitalized for a period of about seven days due to panic disorder and major depression following a lengthy period of work-induced sleep deprivation." R.61 ¶ 8. When Mattice returned to work in August 1995 (after being on medical leave), "Memorial immediately began a course of discriminatory conduct" towards Mattice based on its erroneous perception that (among other things) his cognitive thought was significantly impaired. R.61 ¶ 9. This course of conduct included instances where Mattice was warned that "'all it takes is one slip-up and you're out of here,'" and was subjected to "more rigorous and more critical observation than was necessary or required of other anesthesiologists without [Mattice's] mental health history." R.61 ¶¶ 9, 11. On approximately September 30, 1996, Memorial suspended Mattice after a patient died in the operating room while Mattice was performing the anesthesia care for the patient. R.61 ¶ 12. Mattice denied wrongdoing in that case and in six other cases cited by Memorial in support of the suspension, and requested a hearing with the Peer Review Panel. Id. The Peer Review Panel recommended on February 18, 1997, that Memorial allow Mattice to return to work because the evidence in the cases at issue was either inconclusive or demonstrated that Mattice met the appropriate standard of care. Id. Despite this recommendation, Memorial refused to change its decision about the suspension, and "persisted in its erroneous belief that [Mattice's] mental health history and current medications significantly impaired [his] life activities of cognitive thought, sleeping and others." Id. Mattice appealed Memorial's decision to the defendants' Board of Trustees, which revoked the suspension on July 24, 1997. R.61 ¶ 13. Nevertheless, Memorial "imposed discriminatory monitoring and testing requirements directly related to [Mattice's] mental health history and unrelated to the quality of care issues," and did so while aware that the requirements would make it impossible for Mattice to resume his duties at the hospital. Id. Ultimately, Memorial terminated Mattice's employment. See R.61 ¶ 16. On June 12, 1999, Mattice filed a complaint in the district court, alleging (among other things) that Memorial and MAC discriminated against him in violation of the ADA. R.1. In his complaint, Mattice alleged that he was "a qualified individual with a disability as defined under the ADA," and asserted the facts summarized above. See R.1 ¶ 8. See also R.1 ¶¶ 4-16. C. District Court Decisions On July 2, 1999, Memorial filed a motion asking the court to dismiss Mattice's ADA claims for failure to state a claim upon which relief may be granted. R.50-51. Memorial argued that Mattice's ADA claim failed because he did not allege and could not demonstrate that Memorial regarded him as being substantially limited in a major life activity. See R.51. In his opposition to Memorial's motion, Mattice argued (in part) that under the rules of notice pleading, his assertion that he was a "qualified individual with a disability as defined under the ADA" was sufficient to establish coverage under the statute. R.53 at 1-2. The district court denied Memorial's motion without prejudice on August 3, 1999, but also held that in Sutton v. United Air Lines, Inc., 527 U.S. 471, ___, 119 S. Ct. 2139, 2149-51 (1999), the Supreme Court announced a "level of pleading not previously required" under the ADA. R.57 at 1. Because the decision in Sutton was not available when Mattice filed his complaint, the court offered him an opportunity to file an amended version. R.57 at 2. Mattice filed an amended complaint on August 9, 1999. R.61. Mattice renewed his assertion that, during the relevant time periods, he was "a qualified individual with a disability," and added that he "has a history of significant impairment of the major life activities of sleeping, eating, thinking and caring for himself," in addition to the other life activities "impaired by the existence of and care and treatment for panic disorder, severe depression and suicidal ideation." R.61 ¶ 5. Mattice also asserted that Memorial regarded him as having significant impairments, particularly in the major life activity of "cognitive thinking" and in the major life activities associated with the side effects of his medications. Id. On August 27, 1999, Memorial renewed its motion to dismiss, arguing that, in light of the "higher level of pleading" set forth in Sutton, Mattice failed to assert facts in his amended complaint that would indicate he was disabled within the meaning of the ADA. R.64 at 1-2. In response, Mattice argued that his amended complaint included claims that he has a record of a disability and that Memorial regarded him as having a disability, and asserted that under the rules of notice pleading, he should be allowed to proceed with his ADA claims. R.66 at 1-2. The district court granted Memorial's renewed motion on January 19, 2000, dismissing Mattice's amended complaint because it "does not comply with the pleading requirements of Sutton." R.79 at 1. In its opinion, the district court first reviewed the Supreme Court's decision in Sutton, noting that although the plaintiffs there alleged that the employer regarded them as being substantially limited in working as global airline pilots, the Supreme Court held that their claims could not survive the employer's motion to dismiss. R.79 at 5-6. In the district court's view, the Supreme Court's decision means that, to state a valid claim under the "regarded as" definition of disability, the "complaint must contain more than a mere assertion that an employer regards an employee as substantially limited in a major life activity." Id. at 6. Instead, a plaintiff claiming to be regarded as substantially limited in working must also "allege that he or she is 'unable to work in a broad class of jobs.'" Id. According to the district court, because Mattice did not allege that he was unable to work in a broad class of jobs, his complaint fell short of stating a valid claim that Memorial regarded him as disabled. Id. at 7 & n.3. The district court noted that Mattice also argued that he has a record of a substantially limiting impairment, but then repeated its holding that Mattice failed to state a claim that Memorial regarded him as disabled. Id. at 7-8. Ultimately, the district court dismissed Mattice's ADA and state law claims. Id. at 8. STANDARD OF REVIEW This Court "review[s] de novo a district court's decision to grant a motion to dismiss under Rule 12(b)(6), accepting the well-pleaded allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff." Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). Where a plaintiff can prove a set of facts consistent with his allegations that would entitle him to relief, a motion to dismiss under Rule 12(b)(6) must be denied. See Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999) (outlining this standard of review in a case involving Title VII and ADEA claims). SUMMARY OF ARGUMENT The district court erred when it dismissed Mattice's claims under the ADA on the ground that Mattice did not allege enough in his complaint to meet the pleading requirements of Sutton. In the Commission's view, the basic rules of notice pleading still apply to ADA claims. The Supreme Court's decision in Sutton did not alter the rules for pleading ADA claims, nor could it have, given the Supreme Court's prior holding that the federal courts cannot create heightened pleading standards through judicial interpretation, and given the express language of the Federal Rules of Civil Procedure, which calls for a heightened pleading standard in only two circumstances, neither of which is present in this case. Accordingly, this Court should review Mattice's complaint under the rules of notice pleading. Under that standard, this Court should reverse the district court's decision and remand for further proceedings, because Mattice clearly alleged enough in his complaint to provide Memorial with notice of the nature of his cause of action. ARGUMENT THE DISTRICT COURT ERRED WHEN IT DISMISSED MATTICE'S COMPLAINT FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF COULD BE GRANTED UNDER THE ADA A. The liberal rules of notice pleading, as stated in Rule 8(a) of the Federal Rules of Civil Procedure, still apply to ADA claims It is well established that, under the rules of notice pleading, "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed. R. Civ. P. 8(a)(2)). See also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (reiterating these principles). A complaint "'need not spell out every element of a legal theory' to provide notice." Scott, 195 F.3d at 951 (citation omitted). Instead, a pleading is sufficient, even when it raises claims under the ADA, if it contains "enough 'to allow the defendant[s] to understand the gravamen of the plaintiff's complaint.'" Id. at 952. See also Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998) (applying notice pleading rules to a complaint raising claims under the ADA). In reviewing Mattice's complaint, the district court recited some of the foregoing principles of notice pleading, but then deviated from them in its analysis, ultimately dismissing Mattice's complaint because it "[did] not comply with the pleading requirements of Sutton." R.79 at 1. The district court's decision is wrong and this Court should reject it for at least three reasons. First, nothing in the Supreme Court's decision in Sutton establishes that ADA plaintiffs must satisfy a heightened pleading standard. Instead, the Supreme Court applied the normal rules of notice pleading when it ruled that mitigating measures must be considered when determining whether an individual is substantially limited in a major life activity, and then simply held that the plaintiffs pled themselves out of court by admitting that their corrected vision was 20/20 and that United Airlines excluded them from the single position of "global airline pilot." Sutton, 119 S. Ct. at 2149, 2151. The Supreme Court's holding, therefore, is consistent with the basic rules of notice pleading expressed in the Federal Rules of Civil Procedure, as it has long been clear that, even with notice pleading, "[l]itigants may plead themselves out of court by alleging facts that establish the defendants' entitlement to prevail." Bennett v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998). See also Adkins v. Briggs & Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998) (plaintiff's admission in his complaint that the employer had no knowledge of his disability precluded plaintiff's claim that he was discharged because of his disability). Second, and perhaps more importantly, both the Supreme Court and this Court have held that the federal courts (including the Supreme Court) are prohibited from adopting heightened pleading standards that are not expressed in the Federal Rules of Civil Procedure. Under the Federal Rules of Civil Procedure, there are only two types of actions that must be pled under a heightened standard (i.e., with particularity) - actions alleging fraud or actions alleging mistake. See Fed. R. Civ. P. 9(b). Nothing in the Federal Rules suggests that claims under the ADA must also meet a heightened pleading standard. To the extent that the district court interpreted Sutton as establishing such a standard, the district court should not have done so, because the Supreme Court expressly has held that heightened pleading standards "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, 507 U.S. at 168 (rejecting the heightened pleading standard in cases alleging municipal liability under 42 U.S.C. § 1983) (emphasis added). See also Duda, 133 F.3d at 1057 (ADA case recognizing that "the Federal Rules of Civil Procedure do not permit [the court] to demand a greater level of specificity" except in those instances expressly discussed in the Rules). "In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later." Leatherman, 507 U.S. at 168-69. Third, there are several practical reasons why this Court should reject the proposition that ADA plaintiffs must meet a heightened pleading standard. Under the heightened pleading standard endorsed by the district court, ADA plaintiffs would have to include lengthy statements in their complaints in an effort to list and describe their impairment and all of the major life activities it possibly affects, to avoid both having their complaint deemed insufficient and to avoid waiving arguments (about their status as individuals with disabilities) that might develop after discovery. While plaintiffs certainly are capable of adding verbiage of this nature to their ADA complaints, such a system hardly would facilitate providing defendants with better notice of the plaintiffs' claims that they are disabled. Indeed, plaintiffs would have to engage in this exercise in advance of any discovery, and thus could be forced to speculate on the possible legal theories about their disabilities with little or no evidentiary basis for doing so. Thus, for example, a plaintiff claiming to be substantially limited in working would have to articulate a class or broad range of jobs in which he or she is significantly restricted, and likely would have to do so with limited knowledge of the job market in the relevant geographical area, or the terminology used in the various professions. See 29 C.F.R. § 1630.2(j)(3) (outlining the standard for determining whether an individual is substantially limited in working). Similarly, a plaintiff claiming that his employer regarded him as having a disability likely would have to speculate about the employer's perceptions about his impairment, in advance of receiving any evidence through discovery that could provide insight into the employer's impressions and motivations. See 29 C.F.R. § 1630.2(l) (defining the circumstances where an individual is regarded as having a substantially limiting impairment); 29 C.F.R. Pt. 1630, App. § 1630.2(l) (same). Fortunately, this Court already has announced a rule that avoids these pitfalls, as it has held that the principles of notice pleading apply to ADA complaints. See Duda, 133 F.3d at 1057 (applying this standard in an ADA case). Because of this holding, "[c]omplaints need not plead law or match facts to every element of a legal theory." Bennett, 153 F.3d at 518. See also Poindexter v. Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228, 1232 (10th Cir. 1999) (holding that an ADA plaintiff's complaint need not "articulate with precision the impairment alleged and the major life activity affected by that impairment"); Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 117 n.2 (3d Cir. 1998) (plaintiff's statement in his complaint that he had "'a disorder recognized as a disability under the [ADA]'" was "sufficient to meet the notice pleading requirements of Fed. R. Civ. P. 8 with respect to his disability"). Instead, a complaint states a viable claim under the ADA if it "adequately notifies the defendants of the nature of the cause of action." Duda, 133 F.3d at 1057. Nothing the Supreme Court said in Sutton changed this rule, nor could it have. Accordingly, as it has done in countless other cases, this Court should review Mattice's complaint under the rules of notice pleading. B. Under the rules of notice pleading, the district court erred in granting Memorial's motion to dismiss Mattice's ADA claims As previously noted, the district court dismissed Mattice's ADA claims because the district court did not believe his complaint sufficiently alleged that Mattice is disabled within the meaning of the ADA. The district court erred, because Mattice's complaint, properly construed, clearly gave Memorial fair notice of the bases for his claim that he is disabled. First, Mattice gave sufficient notice of his claim that he is disabled when he alleged that "[a]t all times relevant to this action, [he] has been a qualified individual with a disability." To the extent that there might have been ambiguity about the nature of his impairment, Mattice also alleged that he was hospitalized in 1995 for panic disorder and depression. Taking these statements as true, the district court should have denied Memorial's motion to dismiss, because facts "might be established within those allegations that would permit" a finding that Mattice was disabled. Duda, 133 F.3d at 1057. Second, although Mattice did not need to plead legal theories in his complaint, he nonetheless alleged facts that put Memorial on notice of at least two viable theories that may support coverage under the ADA.<3> Mattice alleged that he "has a history of a significant impairment of the major life activities of sleeping, eating, thinking, and caring for himself," in addition to other life activities that were impaired by "the existence of and care and treatment for panic disorder, severe depression and suicidal ideation." He also alleged that, after he recovered from his impairments, Memorial "regarded [him] as continuing to have significant impairments," especially in the major life activity of cognitive thinking and in the major life activities "associated with side effects from the medications [he] used to mitigate his impairments." Based on these allegations, which again must be taken as true, Mattice could establish facts that would permit a finding that (among other things): (1) Mattice has a record of a disability; and (2) Memorial regarded him as having a disability. In light of these allegations, the flaws in the district court's opinion are patent. The district court departed from the rules of notice pleading, and erroneously analyzed Mattice's complaint as if it was limited to the theory that Memorial regarded Mattice as being substantially limited in the major life activity working. See supra p. 7 (summarizing district court's analysis). See also Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 959, 961-62 (7th Cir. 1996) (holding that the district court erred when it "discussed only why Homeyer could not establish that her major life activity of working was impaired, disregarding her contention that she was 'disabled' because her major life activity of breathing was substantially limited" as well). Mattice clearly provided Memorial with ample notice of his ADA claims, and he clearly could establish facts consistent with the allegations in his complaint that would permit a finding that he has a record of an impairment that substantially limited him in a major life activity, and/or that Memorial regarded him as having such an impairment.<4> Under these circumstances, the district court erred when it granted Memorial's motion to dismiss. CONCLUSION For the foregoing reasons, this Court should reverse the district court's decision to dismiss Mattice's complaint, and remand this case for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 May 8, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. Proc. 32(a)(7)(C), I certify that this brief complies with the type volume limitation set forth in the rules. Based on the word count provided by WordPerfect 8 for Windows, this brief contains 3,784 words. GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7022 Washington, D.C. 20507 May 8, 2000 (202) 663-4728 CERTIFICATE OF SERVICE I, Geoffrey L.J. Carter, hereby certify that on this 8th day of May, 2000, two copies of the attached brief, and one copy of the attached brief on digital media, were sent by first class mail, postage prepaid, to each of the following counsel of record: Cynthia Rockwell, Esq. Haller & Colvin 444 East Main St. Fort Wayne, IN, 46802-1910 Gregory W. Moore, Esq. John P. Ryan, II, Esq. Hall, Render, Killian, Heath & Lyman One American Square, Box 82064 Suite 2000 Indianapolis, IN 46282-0020 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW Washington, D.C. 20507 May 8, 2000 (202) 663-4728 1 Citations in the form "R.*" refer to the record entry number listed on the district court docket sheet. 2 "At all relevant times to this action, [Mattice] was employed by [MAC] under an agreement to exclusively provide anesthesia services for [Memorial]." R.61 ¶ 4. MAC and Mattice have reached a settlement, and MAC is not involved in this appeal. 3 The Commission emphasizes that Mattice did not have to plead facts establishing or outlining legal theories. The fact that some of Mattice's possible legal theories are apparent in his complaint simply underscores the conclusion that Memorial received ample notice of Mattice's ADA claims and the grounds upon which they rest. See supra pp. 8-9 (explaining the rules of notice pleading). 4 The Supreme Court's decision in Sutton is distinguishable. Unlike the complaint at issue in Sutton, Mattice's complaint does not include admissions that establish that Memorial is entitled to prevail. See supra pp. 9-10 (discussing Sutton and the fact that it is possible, under the rules of notice pleading, to plead oneself out of court). Consequently, this Court should reject any argument by Memorial that Mattice pled himself out of court.