Friday, November 15, 2013

When Does a Discrimination Claim Survive the Death of the Complainant?


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 An issue that recently has arisen with some frequency is whether, and under what factual circumstances, a deceased complainant’s discrimination claim survives her/his death. A related question is, assuming the claim survives, what monetary relief may be pursued by the decedent’s estate or personal representative.

Some courts have held that questions of survivability of federal statutory claims are matters of federal common law. See, e.g., Acebal v. United States, 60 Fed. Cl. 551, 555 (Fed. Cl. 2004) (“In the absence of a specific statutory provision, courts have looked to federal common law to determine whether an action created by federal statute survives the death of a party.”); see also Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985) (“It is clear that an ADEA claim survives death of the original plaintiff and is subject to revival by his legal representative as a matter of federal law.”). 

With frequency, federal judges in evaluating these issues also look to applicable state law. Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974) (“In a federal civil rights action where the person who has been deprived of his rights has died, the action survives for the benefit of the estate if the applicable state law creates such a survival action.”); Slade v. United States Postal Service, 952 F.2d 357, 361 (10th Cir. 1991) (plaintiff’s Title VII claim survived his death under applicable Oklahoma statute for survival of personal injury actions); Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1508 (D. Kan. 1993) (concluding that plaintiff’s Title VII claim survived his death, because Kansas state statute on survival of actions provides that personal injury actions survive the plaintiff’s death); Earvin v. Warner-Jenkinson Co., No. 4:94-cv-977-DDN, 1995 WL 137437, 1995 U.S. Dist. LEXIS 19414 at *2 (E.D. Mo. Mar. 10, 1995) (looking to Missouri state law to determine question of survivability of Title VII claim); Hilsabeck v. Lane Co., Inc., 168 F.R.D. 313, 315 (D. Kan. 1996) (holding that Title VII claim survived plaintiff’s death, pursuant to Kansas state law); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 898 (7th Cir. 1997) (as Wisconsin law provides that a tort action for “injuries to the person” survives the victim’s death, a Section 1983 claim and an ADA claim would, if otherwise sustainable, survive the complainant’s death); Wilson v. Big Lots, Inc., No. CV-13-S-1008, 2013 U.S. Dist. LEXIS 144572 at *6-11 (N.D. Ala. Oct. 7, 2013) (looking to Alabama state law to determine question of survivability of Title VII claim).

Of note, the applicable state law may place limitations on who may pursue such a claim on the deceased complainant’s behalf.  See, e.g.,  Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 898 (7th Cir. 1997) (under Wisconsin law, only the decedent’s estate is entitled to sue on such a claim).

As the following discussion demonstrates, there are also critical time-sensitive procedural matters that need to be addressed when the complainant dies, as well as considerations of which damages remain available in the event that the claim in question survives.

Procedural Issues

When a party dies, the decedent’s representative may file a notice of death pursuant to Rule 25 of the Federal Rules of Civil Procedure. The filing of the Rule 25 notice of death triggers the running of a 90-day period within which to file a motion for substitution of a representative of the decedent’s estate. Rule 25(a)(3) requires that the motion to substitute, together with a notice of hearing and statement noting death, be served upon the parties as provided by Rule 5, and upon interested non-parties (e.g., immediate family members, executors) as provided by Rule 4.

The defense may file, pursuant to Rule 17 of the Federal Rules of Civil Procedure, a motion to dismiss the claims for not being pursued by the real party in interest. 

Similarly, the defense may assert that the person or estate pursuing the claim on the decedent’s behalf lacks standing.  Or, the defense may challenge whether the particular cause of action survives the complainant’s death.  Such arguments are often treated by courts as challenges to the legal sufficiency of the complaint under Rule 12(b)(6). See, e.g., Estwick v. U.S. Air Shuttle, 950 F. Supp. 493, 497 (E.D.N.Y. 1996) (“[C]hallenges with respect to standing, failure to exhaust administrative remedies, survival, and insufficiency of the… claim are addressed to the legal sufficiency of the complaint under Federal Rule of Civil Procedure 12(b)(6).”)  Faced with such arguments, the court may then undertake an analysis as to whether the claim survives the death of the complainant under state law, federal law, and/or under the statute(s) under which the claim is brought. 

Survival of Claim Analysis

a.       Before or During the EEOC Charge Process

First, it appears to be generally accepted that if the decedent has not commenced an action under Title VII prior to her/his demise, the claim does not survive and is extinguished at death. The EEOC has repeatedly held that the survivor of a deceased aggrieved party has no standing to pursue a charge with the agency if the complainant did not initiate the charge before her/his death. See, e.g., Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency, Appeal No. 01961473, 1996 EEOPUB LEXIS 4197, 1996 WL 657792 (E.E.O.C. Nov. 6, 1996) (while recognizing that a federal employee’s EEO complaint survives the death of the complainant in certain instances, ruling that the complaint may not be raised in the first instance by the decedent’s estate or personal representative, as the decedent’s estate or personal representative lacks standing to raise such a claim); Estate of Donnie Powell v. Steven R. Cohen, Acting Director, Office of Personnel Management, Appeal No. 01991835, 2001 EEOPUB LEXIS 900, 2001 WL 135460 (E.E.O.C. Feb. 6, 2001) (same); Estate of Paul Anderson v. John E. Potter, Postmaster General, United States Postal Service Agency, Appeal No. 01A33998, 2003 EEOPUB LEXIS 5872, 2003 WL 22288515 (E.E.O.C. Sept. 23, 2003) (same).  Some court opinions have issued similar holdings.  See, e.g., Wilson v. Big Lots, Inc., No. CV-13-S-1008, 2013 U.S. Dist. LEXIS 144572 at *7 (N.D. Ala. Oct. 7, 2013) (“In other words, a claim sounding in tort for which no action has been filed prior to the death of the victim of the tort (the would-be plaintiff) generally does not survive the death of the decedent in favor of the personal representative of the decedent’s estate.”); Wright v. United States, 914 F. Supp. 2d 837, 842 (S.D. Miss. 2012) (holding that “the survivor of a deceased federal employee has no standing to file an EEO complaint on behalf of the former employee.” ) (internal quotation marks omitted).

The filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) has been found to be sufficient to preserve the claim for the estate and/or personal representative. See, e.g., Wilson v. Big Lots, Inc., No. CV-13-S-1008, 2013 U.S. Dist. LEXIS 144572 (N.D. Ala. Oct. 7, 2013) (holding that the decedent’s personal representative could pursue the decedent’s Title VII claims, where the deceased died two months after the filing of an EEOC charge and some four months before the EEOC mailed the right-to-sue letter to the decedent’s lawyer); Weeg ex rel. Weeg v. Ortiz and Associates, Inc., 556 F. Supp. 2d 1188 (D. Or. 2008) (denying employer’s motion for partial summary judgment, in a case where the complainant filed a discrimination complaint with the EEOC and the relevant state agency, the complainant subsequently died, and the complainant’s personal representative continued to pursue the matter on the complainant’s behalf).

Occasionally a scenario arises where the complainant filed a charge with the EEOC, but died before the EEOC finished processing the charge. In that instance, the EEOC’s Compliance Manual states that “the legal unit should determine whether a cause of action under state law survives the party and who inherits the rights and interests arising out of the charge.” EEOC Compl. Man. 4.4(d), 2006 WL 4672949. The Manual goes on to state that “[i]f the charge does not survive the party’s death under state law,” the EEOC should dismiss the charge. Id. In Wilson v. Big Lots, Judge Smith noted that Alabama’s tort claim survivorship statute was the most analogous state law, as, “conceptually speaking,” a discrimination claim contained similar elements of duty, breach, damages, and intentionality as a common-law tort claim. Wilson, 2013 U.S. Dist. LEXIS 144572, at *6. Although the Alabama’s tort statute did not generally permit survivorship of claims, a 2000 Alabama Supreme Court decision, Callens v. Jefferson County Nursing Home, 769 So. 2d 273 (Ala. 2000), created a narrow exception allowing for a continuance of a claim so long as the plaintiff took the appropriate administrative action before death. Id. at *7. In Wilson’s case, Judge Smith held that because the complainant had filed an EEOC charge prior to her death, the claim could continue through the complainant’s personal representative. Id.   

b.      After Initiation of Litigation – Varied Decisions on What Damages Are Available

Assuming that the decedent’s claim survives, the question then becomes what remedies (if any) remain available.  Some opinions have recognized that the very fact of the complainant’s death makes it impossible to award certain categories of “make whole” relief.  For example, in Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency, Appeal No. 01961473, 1996 EEOPUB LEXIS 4197, 1996 WL 657792 (E.E.O.C. Nov. 6, 1996), after concluding that the deceased complainant had not suffered any harms which would have entitled him to an award of monetary damages, the EEOC noted the following:

[T]he remedies that may be ordered by the Commission when discrimination is found are designed to make the victim of the discrimination "whole" or place the individual in the position he would have occupied absent the discriminatory action. Where, as in this case, the allegation involves conditions of employment, appropriate individual remedial relief would involve cessation of the discriminatory treatment and harassment… [A]ppellant would not have been entitled to monetary relief. Therefore, as the relief in the complaint would be equitable in nature, there is no remedy which could be granted in light of the change in position of the parties, and no administrative purpose would be served by the continued processing of the complaint.

In terms of claims under Title VII for lost wages and lost benefits, courts have held that entitlement to an award of such damages survives the death of the complainant, so long as the underlying claim otherwise survives. See, e.g., Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876 (11th Cir. 1986) (discussing potential back pay liability in a class action case, in a case in which the person who filed the class action complaint subsequently died); Estate of Trivanovich v. Gulfport-Biloxi Regional Airport Auth., No. 1:06-cv-539-LG-JMR, 2008 U.S. Dist. LEXIS 53399, 2008 WL 2779441 (S.D. Miss. July 14, 2008) (allowing Title VII discrimination and retaliation claims seeking monetary damages to proceed after the plaintiff’s death, but granting the defendant’s motion for summary judgment on other grounds); Bligh-Glover v. Rizzo, No. 1:08-cv-2788, 2012 U.S. Dist. LEXIS 141512, 2012 WL 4506029 (N.D. Ohio Sept. 30, 2012) (holding that complainant’s discrimination and retaliation complaints, seeking compensatory damages, survived after his death, and denying defendants’ motion for summary judgment).

In Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1508 (D. Kan. 1993), the court held that the decedent’s Title VII and intentional infliction of emotional distress claims survived the death of the plaintiff.  While the court did not explicitly so hold, one would assume that the court would have also held, had it been faced with the question, that a claim by the decedent for emotional distress damages under his Title VII claim would have also survived (although, of course, there could not be a “double dip” recovery for the same emotional distress damages under both the Title VII and IIED claims).

Courts have also allowed claims for attorneys’ fees to survive the complainant’s death.  See, e.g., Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d 357, 360-61 (10th Cir. 1991) (in a case under Title VII in which the complainant died and his wife was substituted as plaintiff, holding that the district court had jurisdiction over the Plaintiff’s claim for attorneys fees as a prevailing party, including fees incurred in required administrative proceedings, even though the complainant had abandoned his claim for back wages).

Claims for punitive damages, on the other hand, are typically held to not survive the complainant’s death.  Many courts have held that awards which are punitive in nature do not survive the death of the complainant, and thus that punitive damage awards are not available after the complainant’s death.  See, e.g., Schreiber v. Sharpless, 110 U.S. 76, 80 (1884) (holding that actions based upon penal statutes do not survive the death of the plaintiff); United States v. Oberlin, 718 F.2d 894, 896 (9th Cir. 1983) (same); Medrano v. MCDR, Inc., 366 F. Supp. 2d 625, 635 (W.D. Tenn. 2005) (holding that, under federal common law, a decedent’s estate cannot collect punitive damages on a section 1981 claim).  See also Continental Assurance Co. v. American Bankshares Corp., 483 F. Supp. 175, 177 (E.D. Wis. 1980) (noting that the key inquiry in deciding survivorship of claims is whether the statute under which the claim is brought is primarily remedial in nature); Bracken v. Harris and Zide, LLP, 219 F.R.D. 481, 483, U.S. Dist. LEXIS 271 (N.D. Cal. 2004) (same).

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