Guenther v. Griffin Constr. Co.

• Decision Date: 19 January 2017
• Docket Number: No. 16-1760,16-1760
• Citation: 846 F.3d 979,33 A.D. Cases 400
• Parties: Justin GUENTHER, Special Administrator, Estate of Semmie John Guenther, Plaintiff–Appellant v. GRIFFIN CONSTRUCTION COMPANY, INC., Defendant–Appellee Equal Employment Opportunity Commission, Amicus on Behalf of Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

846 F.3d 979

33 A.D. Cases 400

Justin GUENTHER, Special Administrator, Estate of Semmie John Guenther, Plaintiff–Appellant

v.GRIFFIN CONSTRUCTION COMPANY, INC., Defendant–Appellee

Equal Employment Opportunity Commission, Amicus on Behalf of Appellant

No. 16-1760

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2016

Filed: January 19, 2017

Mason Boling, Jenna R. Fogleman, George McAllaster Rozzell, Keith & Miller, Rogers, AR, for Plaintiff–Appellant.

Matthew Scott Jackson, Samantha Leflar, Kutak & Rock, Fayetteville, AR, for Defendant–Appellee.

Paul D. Ramshaw, Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for Amicus on Behalf of Appellant(s) Equal Employment Opportunity Commission.

Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.

RILEY, Chief Judge.

This appeal asks whether a claim for compensatory damages brought under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., survives or abates upon the death of the aggrieved party. Semmie John Guenther, Jr., filed an administrative charge with the Equal Employment Opportunity Commission (EEOC), alleging his former employer, Griffin Construction Company, Inc., discriminated against him on the basis of his disability. Guenther passed away while his charge was still pending, so the special administrator of his estate filed suit on his behalf when he received the EEOC right-to-sue letter. The district court dismissed the action, concluding federal common law called for application of the Arkansas survival statute, see Ark. Code Ann. § 16–62–101(a)(1), and finding Guenther's claim had abated. Guenther's estate appeals, and having jurisdiction under 28 U.S.C. § 1291, we reverse.

I. BACKGROUND

Guenther began working for Griffin Construction in 2008, and he oversaw construction projects across Arkansas and Texas for four years. In the spring of 2012, he was diagnosed with prostate cancer

. Guenther requested and received roughly three weeks' leave from work to receive treatment, and he returned to work when it appeared the treatment was successful. In 2013, Guenther learned the cancer had spread throughout his body. He notified Griffin Construction he would need to take another three weeks' leave to undergo radiation therapy. Instead, Griffin Construction fired Guenther and told him he could reapply for any openings in the future if he wished. Despite alleged promises to the contrary, Griffin Construction also immediately cancelled Guenther's insurance policies.

Guenther filed a timely charge of discrimination with the EEOC. He died before the administrative process was complete. In May of 2015—roughly 22 months after Guenther was fired, 20 months after he filed his charge, and 12 months after he passed away—the EEOC issued its right-to-sue letter, having found reasonable cause. Justin Guenther, special administrator of Guenther's estate, filed suit under Title I of the ADA, 42 U.S.C. §§ 12111, et seq., and the Arkansas Civil Rights Act, Ark. Code Ann. §§ 16–123–101, et seq. Griffin Construction filed its answer and then moved to dismiss the action, contending the claims did not survive Guenther's death. The district court adopted the Arkansas tort survival statute as the federal rule of decision, agreed that Guenther's ADA claim abated at his death, and entered judgment for Griffin Construction on the pleadings.¹ See Fed. R. Civ. P. 12(c). We reverse.

II. DISCUSSION

Whether a complaint states a cause of action is a question of law we review on appeal de novo. See Minch Family LLLP v. Buffalo–Red River Watershed Dist., 628 F.3d 960, 965 (8th Cir. 2010). We assume all well-pleaded factual allegations are true, draw all reasonable inferences in favor of the non-movant, and affirm dismissal under Rule 12(c) only if the movant is entitled to judgment as a matter of law. See id. Under normal circumstances the facts as alleged here would state a plausible claim under the ADA. However, Guenther, the would-be plaintiff, died before he could file suit. The determinative issue at this stage becomes whether the ADA claim for compensatory damages survived Guenther's death.²

Whether a federal claim survives is a question of federal law. See Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Congress could have supplied the answer by explicitly instructing courts on how to resolve situations like this one. It did not. The ADA is silent on the claim-survival issue, and "[t]here is no general survival statute for federal-question cases." 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure§ 1954. Nor does 42 U.S.C. § 1988(a) —which directs courts to fill gaps in certain federal actions with state law when state law is not "inconsistent" with federal law—apply to the ADA.³ Therefore the question of survival "is governed by federal common law when, as here, there is no expression of contrary intent" from Congress. Smith v. Dep't of Human Servs., 876 F.2d 832, 834 (10th Cir. 1989).

"The more difficult task, to which we turn, is giving content to this federal rule." United States v. Kimbell Foods, Inc., 440 U.S. 715, 727, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979) (emphasis added). Sometimes it is best to incorporate state law, while other times a uniform rule is warranted. Compare Gaona v. Town & Country Credit, 324 F.3d 1050, 1056 (8th Cir. 2003) (applying a state statute of limitations to the ADA), with Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448–50, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (creating a uniform definition of "employee" for the ADA). Whether to adopt state law or create a uniform federal rule "is a matter of judicial policy ‘dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.’ " Kimbell Foods, Inc., 440 U.S. at 728, 99 S.Ct. 1448 (quoting United States v. Standard Oil Co. of Cal., 332 U.S. 301, 310, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947) ). Contrary to the district court's opinion, we are convinced the relevant considerations weigh in favor of a uniform rule of survivability.

First, state law should not be incorporated where doing so would " ‘frustrate specific objectives of the federal programs.’ "⁴

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 98, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) (quoting Kimbell Foods, Inc., 440 U.S. at 728, 99 S.Ct. 1448 ). "[F]ederal courts must be ever vigilant to insure that application of state law poses ‘no significant threat to any identifiable federal policy or interest.’ " Burks v. Lasker, 441 U.S. 471, 479, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979) (quoting Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966) ).

So what did Congress say? Congress declared its interest in passing the ADA was to "provide a clear and comprehensive national mandate" with "clear, strong , consistent , [and] enforceable standards" to address the "serious and pervasive social problem" of disability-based discrimination on a case-by-case basis. 42 U.S.C. § 12101(a)(2), (b)(1)–(2) (emphasis added); see Clackamas, 538 U.S. at 446 & n.6, 123 S.Ct. 1673 (considering broad application of the ADA's protections "consistent with the statutory purpose of ridding the Nation of discrimination").

Griffin Construction contends that allowing Guenther's claim to abate under Arkansas law does not frustrate this national mandate.⁵ In making this contention it relies primarily on the Supreme Court's holding in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), and our decision in Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986). These cases stand for the proposition that " ‘[a] state statute cannot be considered "inconsistent" with federal law merely because the statute causes the plaintiff to lose the litigation.’ " Id. at 1453 (quoting Robertson, 436 U.S. at 593, 98 S.Ct. 1991 ). But cf. Carlson, 446 U.S. at 25, 100 S.Ct. 1468 ("A uniform rule that claims such as respondent's survive the decedent's death is essential if we are not to ‘frustrate in [an] important way the achievement’ of the goals of Bivens actions." (alteration in original) (quoting UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 702, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) )).

We are not persuaded by this analogy. Robertson and Parkerson involved § 1983 actions as to which Congress had expressed its preference for state law via § 1988(a). See Parkerson, 782 F.2d at 1453 (" ‘[Section] 1988 quite clearly instructs us to refer to state statutes.’ " (quoting Robertson, 436 U.S. at 593, 98 S.Ct. 1991 )); see also Carlson, 446 U.S. at 24 n.11, 100 S.Ct. 1468 (" Section 1988 does not in terms apply to Bivens actions, and there are cogent reasons not to apply it to such actions even by analogy."). Congress has given no such indication in the ADA, and thus our analytical starting point is different.⁶

Furthermore, Robertson was a "narrow" holding "limited to situations" where allowing a claim to abate under state law would have "no independent adverse effect on the policies underlying § 1983," namely compensation and deterrence. Robertson, 436 U.S. at 594, 98 S.Ct. 1991. The Supreme Court concluded the state statute in that case posed no threat to deterrence because most claims would survive under it and "even an official aware of the intricacies of [state] survivorship law would hardly be influenced in his behavior by its provisions."⁷ Id. at 592, 98 S.Ct. 1991. We broadened this rationale somewhat in Parkerson because the state statute was less hospitable than was the case in Robertson, although we emphasized our belief there was still no threat to deterrence because § 1983 wrongdoers "have no means of knowing their victim will die during the pendency of the victim's action." Parkerson, 782 F.2d at 1455.

We agree with Guenther's estate that abatement of compensatory ADA claims poses "a special threat to...