Hanson v. Atlantic Research Corporation, No. 4:02-CV-00301 SMR (E.D. Ark. 2/14/2003)

• Decision Date: 14 February 2003
• Docket Number: No. 4:02-CV-00301 SMR.,4:02-CV-00301 SMR.
• Parties: CONSTANCE HANSON, PLAINTIFF, as personal representative of THE ESTATE OF KENT HANSON v. ATLANTIC RESEARCH CORPORATION, DEFENDANT.
• Court: U.S. District Court — Eastern District of Arkansas

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CONSTANCE HANSON, PLAINTIFF, as personal representative of THE ESTATE OF KENT HANSON v. ATLANTIC RESEARCH CORPORATION, DEFENDANT.

No. 4:02-CV-00301 SMR.

United States District Court, E.D. Arkansas, Western Division.

February 14, 2003.

ORDER

STEPHEN M. REASONER, District Judge.

Pending before this Court is Defendant's Motion To Dismiss (Doc. No. 3) to which Plaintiff has responded. For the reasons stated below, the motion is granted in part and denied in part.

Defendant's motion is made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and alleges that Plaintiff's Complaint fails to state a claim upon which relief can be granted. A court should dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure only if it appears that, after considering the allegations and all reasonable inferences flowing therefrom, the plaintiff can prove no set of facts which would entitle her to relief. Doe v. Barger, 193 F. Supp.2d 1112, 1114 (E.D.Ark. 2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

The following facts are taken as true for the purposes of deciding this motion. Plaintiff's decedent, Mr. Kent Hanson ("Hanson"), was, at all relevant times, an employee of Defendant and over the age of forty. On April 15, 2000, Hanson had a brain hemorrhage that subsequently caused him to have open heart surgery. He was hospitalized for approximately two months. Hanson then returned home where he received extensive physical and occupational therapy. On August 13, 2000, Hanson suffered a small stroke that required him to be hospitalized for an additional three days after which he returned home and continued with his physical and occupational therapy.

On October 11, 2000, while Hanson was still receiving therapy at home, Defendant notified him that he would either have to return to work on a full-time basis or his employment would be terminated due to his disability. Defendant further advised Hanson that it was company policy to terminate employees after 180 days of short-term disability if they could not return to work as full-time employees.

Hanson had a good prognosis for recovery and likely could have returned to work with some reasonable accommodation. Hanson requested such an accommodation in a meeting with his immediate supervisor, Mr. Jim Valetutti. Valetutti assured Hanson that he would be allowed to come back to work on a part-time basis and that transportation would be provided to Hanson. In fact, Hanson had, for some time since the onset of his disability, been working for Defendant at home on a part-time basis.

Cigna, the insurance company which provided Hanson's long-term disability coverage, attempted to negotiate a part-time accommodation for Hanson beginning on October 11, 2000, with a gradual return to full-time work. However, Defendant would only grant a ninety day extension and rejected the accommodation Cigna proposed. Hanson apparently declined the ninety day extension and relocated to another area of the country. Sometime later, and before this suit was commenced, Hanson died.

Plaintiff's Complaint was filed on May 17, 2002, alleging violations of the ADEA and ADA and demanding damages in the form of compensatory damages, back pay, front pay, punitive damages, costs, and attorney's fees. Plaintiff's claim for compensatory damages is based on Hanson's and Hanson's family's alleged mental anguish, personal suffering, professional embarrassment, and public humiliation.

The ADEA Claim

The Age Discrimination in Employment Act ("ADEA"), codified at 29 U.S.C. § 621, et seq., prohibits termination of an employee because of his age. 29 U.S.C. § 623(a)(1). This prohibition extends only to those employees over the age of forty. 29 U.S.C. § 631(a). To establish a prima facie case of age discrimination, a plaintiff must show that: (1) he is a member of a protected age group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he was discharged; and (4) he was replaced by a younger person. Calder v. TCI Cablevision of Mo., Inc., 298 F.3d 723, 729 (8th Cir. 2002).

It is undisputed that Hanson satisfies the first and third prong of the test — he is over forty and he was discharged. However, Plaintiff's complaint fails to establish the other two prongs of the test. Plaintiff's complaint makes several conclusory statements that Defendant violated the ADEA and that Defendant discriminated against Hanson because of his age. There is also an allegation that Defendant refused to accommodate Hanson because Defendant did not want to have to pay Hanson retirement benefits.

However, even taking as true all of Plaintiff's allegations of fact, Plaintiff's bare-bones complaint fails to allege that Hanson was replaced by a younger employee. Furthermore, Hanson's discharge was based, according to Plaintiff's complaint, on Hanson's failure to return to work within the time allowed by Defendant's age-neutral absence control policy. It may be that this policy violates the ADA,¹ but a policy which is violative of the ADA can still be age-neutral. Hanson's failure to conform his conduct to Defendant's policy is not a performance at a level that met Defendant's expectations. Therefore, this Court believes that Plaintiff, by not alleging facts sufficient to establish two elements of her prima facie case, has failed to state a claim upon which relief can be granted. Plaintiff's ADEA claim will be dismissed with prejudice.

Even if Plaintiff had stated a claim under the ADEA, this Court would be required to dismiss some of her damage requests. The ADEA allows recovery of lost wages, i.e., back pay and front pay, liquidated damages, attorney's fees, and costs. See 29 U.S.C. § 626(b); 29 U.S.C. § 216(b). Compensatory damages for pain and suffering and other similar non-pecuniary injuries are not recoverable. See 29 U.S.C. § 626(b); 29 U.S.C. § 216(b). See also Fiedler v. Indianhead Truck Line, Inc., 670 F.2d 806, 809-10 (8th Cir. 1982). Therefore, even if this Court had not found that Plaintiff failed to state a claim under the ADEA, it would apply the above rule and dismiss all claims for compensatory damages for non-pecuniary injuries under the ADEA.

Liquidated damages can only be recovered if an employer's violation was willful. 29 U.S.C. § 626(b). "The legislative history of the ADEA indicates that Congress intended for liquidated damages to be punitive in nature." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985). While relying on the Supreme Court's characterization of liquidated damages as punitive, every case which this Court found applied the federal common law rule that punitive damage claims do not survive the death of the aggrieved party. See, e.g., Smith v. Dep't of Human Servs., 876 F.2d 832, 834-35 (10th Cir. 1989); Estwick v. U.S. Air Shuttle, 950 F. Supp. 493, 498 (E.D.N.Y. 1996); Hawes v. Johnson & Johnson, 940 F. Supp. 697, 702-03 (D.N.J. 1996); Caraballo v. South Stevedoring, Inc., 932 F. Supp. 1462, 1466 (S.D.Fla. 1996) (relying on Hazen Paper Co. v. Biggins, 507 U.S. 604, 615-17 (1993) — a more recent Supreme Court case which itself relies on the Thurston decision); Duart v. FMC Wyo. Corp., 859 F. Supp. 1447, 1451 n. 2 (D.Wyo. 1994) (relying on Smith, 876 F.2d at 834-35 which itself relies on the Thurston decision). See also Brian Owsley, Survivorship Claims Under Employment Discrimination Statutes, 69 Miss. L.J. 423, 433-35 (1999) (hereafter "Owsley"). Therefore, even if this Court had not found that Plaintiff had failed to state a claim under the ADEA, it would apply the above rule and dismiss all claims for punitive or liquidated damages under the ADEA.

The ADA Claim

The Americans with Disabilities Act ("ADA"), codified at 42 U.S.C. § 12101, et seq., prohibits termination of a "qualified individual with a disability" because of the disability. 42 U.S.C. § 12112(a). A qualified individual with a disability is a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Defendant's sole basis for its motion to dismiss on Plaintiff's ADA claim is that such claims do not survive the death of the aggrieved party. Therefore, for purposes of this motion, this Court will assume that Hanson meets all the requirements and definitions to maintain a claim under the ADA.

The ADA allows recovery of damages as allowed by 42 U.S.C. § 2000e-5. 42 U.S.C. § 12117(a). Title VII, codified at 49 U.S.C. § 2000e, et seq., allows for the recovery of back pay, attorney's fees, and costs. 42 U.S.C. § 2000e-5(g); 42 U.S.C. § 2000e-5(k). Section 2000e-5 now has a companion statute which allows the recovery of punitive damages and compensatory damages in ADA cases when the discriminatory conduct is shown to be intentional. 42 U.S.C. § 1981a(a)(2). These statutes allow recovery only by an aggrieved employee.

Defendant contends that the survivability of ADA claims is governed by Arkansas law and that under Arkansas law an ADA claim does not survive the death of the aggrieved party. This Court cannot agree.

When faced with the question of survivability of an ADA claim, the courts have confusingly split. Some courts look to 42 U.S.C. § 1988(a) and its direction to apply state law in certain types of cases where federal law is silent or inadequate. See, e.g., Allred v. Solaray, Inc., 971 F. Supp. 1394, 1396 (D.Utah 1997); Rosenblum v. Colorado Dep't of Health, 878 F. Supp. 1404, 1408-09 (D.Colo. 1994); United States v. Morvant, 843 F. Supp. 1092, 1095 (E.D.La. 1994). See also Owsley, at 435-40. Title VII is equally silent on this issue and some courts have also looked to 42 U.S.C. § 1988(a) to determine survivability in these cases as well. Slade v. United States Postal Serv., 952 F.2d 357, 360 (10th Cir. 1991); Small v. American Tel. & Tel., Co., 759 F. Supp. 1427, 1428 (W.D.Mo. 1991); Hamilton...