Friday, November 15, 2013

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

 


Image Courtesy of Monty Python Meaning of Life

 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).


Please be sure to visit our website at http://RobertBFitzpatrick.com

10 comments:

shermanharrison said...

GenyMotion is aircus.com/ finest emulator which could be Click Here made use of along the Bluestacks Snapchat Download : Computer, iOS Devices & APK Android emulator If you men don't know Snapchat APK the procedure to make use of the Snapchat SnapChat Online application for your PC home windows.

Anonymous said...

We have to wait up until the Mobdro wixsite.com/ developer release Mobdro for apple iphone iPhone 6 Website iPhone FIVE, apple iphone 4S as well as Mobdro App All Version Free Download For Android, iPhone, PC Mobdro for iPad tools. Later soon the programmer may Mobdro plan to launch Mobdro iOS. If any type of update Mobdro App details pertaining to release.

kristinahojholt said...

I want to express appreciation to you just for bailing me out of this crisis. Right after surfing throughout the online world and obtaining solutions which are not productive, I figured my life was over. Being alive devoid of the answers to the issues you have solved by means of your good site is a critical case, as well as ones that would have negatively affected my entire career if I had not come across your website. The training and kindness in touching almost everything was crucial. I'm not sure what I would have done if I hadn't come upon such a stuff like this. I can also at this moment relish my future. Thank you so much for your high quality and sensible help. I won't hesitate to propose the blog to anyone who desires assistance on this subject matter. injury attorney office

tech said...

Adoro i manifesti Pubblicitari in 3D per una Comunicazione Innovativa. Chiedi Info! Assistenza Tecnica · Qualità Professionale · Primi in Italia · Alta Velocità Tipi: Manifesti e Poster 3D, Locandine 3D, Espositori 3D, stampante 3d e Scenografie 3D, Render 3D. La tecnologia di stampa 3d permette modelli in pla e abs e molti altri materiali. Anche i droni li adoro, i droni professionali sono perfetti per le ispezioni e la termografia con drone. Best drones gimbal.

5689 said...

zzzzz2018.8.11
ralph lauren outlet
cheap jordans
ecco outlet
ferragamo outlet
ugg boots clearance
cheap jordans
yeezy boost 350 v2
nike blazer pas cher
football pas cher
coach outlet

Unknown said...

zzzzzzz0814polo ralph lauren outlet
football soldes
christian louboutin sale
moncler online
ugg boots
christian louboutin shoes
salomom shoes
canada goose jackets
canada goose outlet
ralph lauren uk

5200 said...

0822jejeCe sera chaussures nike homme air max 2017 la première chaussure de basket Nike + lancée par Nike et asics running gel pas cher elle est très attendue. Quel est le point nike air jordan 1 retro mid joker dans un briquet qui ne s'allume pas ?! asics gel lyte 5 asos Les meilleurs briquets s'allument à chaque fois, sans asics gel kinsei 6 bleu exception. Les muscles de certaines personnes ont fini par se baskets nike zoom pegasus 32 rétrécir en raison du fonctionnement fréquent, en particulier du mollet.

Daisy Thomas said...


Hi, I do believe this is a great btppulamg blog. I stumbledupon it ;) I'm going to revisit once again since I book marked it. Money and freedom is the best way to change, may you be rich and continue to guide others. The Gaming Club bears a license from the direction of Gibraltar, and claims to be one of a select few casinos that have a license from the Gibraltar government. A enthusiast of the Interactive Gaming Council (IGC), The Gaming Club follows all the guidelines laid the length of by the organization, something that has once a long showing off in it brute certified as a great area to gamble online.

Everything not quite The Gaming Club feels good; be it the promotions, the big number of games, the fused banking options on offer, the avant-garde security measures, or the fair and blamed gaming practices the casino adopts.

The Gaming Club motors along on software developed by one of the giants of online gaming software increase Microgaming. The software it uses is open-minded and has a range of features meant to include your online gambling experience and make you desire to come help after every round of gambling you get here.

Another hallmark of a good casino is the mood of its customer support team, and The Gaming Club does not disappoint on this front.
http://magnum4dlive.com/tag/btppulamg/

Anonymous said...

OUTLOOK: Much like several other conferences across the country, the makeup of the Southern Conference for the upcoming basketball season is vastly different than it was when the 2013 14 season came to a halt. The formerly 11 team league dropped four of its members in the offseason, which includes Davidson (finished 15 1 in conference play last season), Elon, Georgia Southern and Appalachian State. Those four programs moved on to other outlets, but the SoCon was able to bring up three programs to replace the teams in which it lost in the offseason. (Michael Kors Medium Camera Bag Black)

Coach Pink And White Purse, I'm not making a political point. I'm really not. I don't want to talk about the efficacy or morality of government programs. Feel better on the ice. My first couple of steps, I feel faster, said Rantanen, who turned 22 on Monday and leads the league in points with five goals and 16 assists. Think there are still things I can work on and maybe get better next year. (Michael Kors Studded Bag Black)

The M23 has been fighting the Congolese government for nearly two years. On its website, the group announced that it would by purely political means, a search for solutions to the profound issues that led to its creation. Has happened here is not simply the M23 rebellion saying that they're going to have a ceasefire, or cease for a while," Feingold said. (Michael Kors Change Purse Black)

In a Manhattan court in October, Kraft said Bega jars were a effort to trade off the goodwill of the Kraft brand, cause consumer confusion, and irreparably harm the value of Kraft intellectual property demanded Bega drop the famous yellow lids and packaging. But Bega has always maintained it now owns the brand intellectual property, bar the Kraft name. Until a decision is made, both brands have the same look. (Michael Kors Black Mk Purse)

dette said...

these details gucci replica handbags navigate to this site replica bags Related Site have a peek here