Small v. American Tel. & Tel. Co.

• Decision Date: 27 March 1991
• Docket Number: No. 89-1113-CV-W-1.,89-1113-CV-W-1.
• Court: U.S. District Court — Western District of Missouri
• Parties: Billy R. SMALL, Plaintiff, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, et al., Defendants.

759 F. Supp. 1427

Billy R. SMALL, Plaintiff, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY, et al., Defendants.

No. 89-1113-CV-W-1.

United States District Court, W.D. Missouri, W.D.

March 27, 1991.

Gregory Bernard King and Cecil D. Williams, Kansas City, Mo., for plaintiff.

Jack W.R. Headley and Sue Phillips, Kansas City, Mo., for defendants.

ORDER

WHIPPLE, District Judge.

Before this court is defendants' Motion for Summary Judgment on Count II of Plaintiff's Complaint, filed August 30, 1990. Plaintiff filed his Memorandum Opposing Defendants' Motion for Partial Summary Judgment on October 3, 1990. Defendants filed their Reply Suggestions on October 10, 1990.

Before the court could rule on the pending motion, plaintiff's counsel advised the court in October that plaintiff was too ill to go to trial. The case was removed from the trial docket by order of the court, dated October 15, 1990. Sometime thereafter, the court was notified that plaintiff died. On December 21, 1990, the court directed the parties to submit briefs on the survivability of plaintiff's employment discrimination claims arising under Title VII, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. Pursuant to the court's order, the parties submitted their briefs on January 11, 1991. For the reasons set forth below, the court finds that plaintiff's claims survive his death but will defer ruling on defendants' motion for partial summary judgment.

I. STATEMENT OF FACTS

On November 29, 1989, Billy Small ("Small") filed a two-count Complaint against American Telephone & Telegraph Company ("AT & T") and Paul Werner ("Werner"). Small claimed that he had been discriminated against on the basis of his race pursuant to Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981.

Small was employed by AT & T in February of 1980. During the course of his employment with AT & T, Small held several different positions. Just prior to leaving the company, Small held a second-level managerial position.

In August of 1988, during a mid-year evaluation, Small was advised that his position as a second-level manager was being placed "at risk" due to a company-wide downsizing of its management staff. Small received written notification that his position had been placed "at risk" in a letter dated September 16, 1988. Therein, AT & T advised Small

you have been identified as an At-Risk employee whose employment will be terminated unless you are able to secure a position in another department or organization.

Please be assured every effort will be made to place you in another department or AT & T company. However, as you are aware, many other organizations and AT & T companies are going through this same process and openings are limited. Enclosed is a Staffing Preference form for your completion and instructions regarding the process.

Between the time Small was notified that his management position was "at risk" and October 14, 1988 — the date Small's position as a second-level manager terminated — efforts were made to find another position for him. During this period of time, Small was unable to locate a job comparable to his other second-level managerial position. He was offered a first-level managerial position but declined to take it. This position was available to Small right up until the date of his termination.

In support of his claim under 42 U.S.C. § 1981, Count II of the Complaint, Small alleged several instances of racial discrimination. Small claimed that Werner, his immediate supervisor prior to his termination, failed or refused to assist Small in obtaining a position elsewhere in the company and failed or refused to authorize an extension of Small's termination date to allow him additional time to find another job because of his race. Additionally, Small alleged that AT & T placed his position "at risk" (thereby terminating him) and failed or refused to offer him a position comparable to his second-level managerial position because of his race.

II. DISCUSSION

A. Survivability of Plaintiff's Claims

Whether Small's civil rights claims survive his death are determined by the state's law governing survival of actions. Under 42 U.S.C. § 1988, courts are directed to apply the state's survival law as long as the result is not inconsistent with the United States Constitution and its law. Robertson v. Wegmann, 436 U.S. 584, 589, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554, 566 (1978); Parkerson v. Carrouth, 782 F.2d 1449, 1451 n. 3 (8th Cir.1986).

In Missouri, the survival of claims for personal injuries are guided by Mo.Rev. Stat. §§ 537.020 and 537.030. Section 537.020 states in pertinent part that "causes of action for personal injuries ... whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death...." Section 537.030 qualifies § 537.020 by stating that it shall not extend to actions for slander, libel, assault and battery, or false imprisonment.

To date, no court has had occasion to determine whether Title VII or Section 1981 claims survive under the state's survival law. In the absence of case law construing Missouri's law, the parties rely on cases construing other states' survival provisions. In support of his contention that the claims survive, Small relies on Kilgo v. Bowman Transportation, Inc., 789 F.2d 859 (11th Cir.1986), for the proposition that both Title VII and § 1981 claims survive the plaintiff's death. Kilgo involved a claim under Title VII and an analysis of the Georgia survival law. Relying on an earlier case that held that state law permitted the survival of claims under 42 U.S.C. § 1983, Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), the Kilgo court determined that Title VII claims likewise survived. Small, in extending the Kilgo court's ruling to include actions under Section 1981, proffered that "consistency requires that actions brought pursuant to 42 U.S.C. § 1981 like actions pursuant to § 1983 should also survive the death of the plaintiff." Plaintiff's Memorandum at 3.

Defendants, in support of their argument that Small's claims abated at his death, primarily rely on Alsup v. International Union of Bricklayers & Allied Craftsmen, Local Union No. 3, 679 F.Supp. 716 (N.D.Ohio 1987) and Carter v. City of Emporia, 543 F.Supp. 354 (Kan.1982). Both cases involved claims under 42 U.S.C. § 1981 and both held that under state law the claims abated at the plaintiff's death. In so finding, both courts (the Alsup court directly relied on the Carter court's reasoning) concluded that because the state survival statutes exclude "personal" claims for libel, slander, and malicious prosecution, a claim under Section 1981 should be excluded as being equally "personal" to the plaintiff.¹ Alsup, 679 F.Supp. at 720-21; Carter, 543 F.Supp. at 356. Relying on this rationale, defendants reason that Title VII claims should not survive because they, likewise, are personal to the plaintiff. Defendants' Brief at 3-4.

The court is not persuaded by the reasoning set forth in Alsup and Carter. Rather, the court finds that an interpretation of the Missouri survival statute — and its impact on the survival of Title VII and § 1981 claims — can be made without relying on an analysis of another state's survival statute.

Missouri's survival law has been interpreted both broadly and narrowly. The law has been interpreted broadly in the sense that an expansive reading has been given to the phrase "personal injuries." Gray v. Wallace, 319 S.W.2d 582, 583-84 (Mo.1958). In Gray, the Supreme Court of Missouri was asked to determine if §§ 537.020 and 537.030 permitted the survival of an action for malicious prosecution. In finding that actions for malicious prosecution survive, the state supreme court, in part, relied on its belief that the state legislature meant to use the expression "personal injuries" in its

broadest and most comprehensive sense because, by excepting the named actions, it demonstrated that it intended to include ... actions for injuries to personal rights as distinguished from actions for injuries to the body of the person. It must follow that the legislature intended that the term "personal injuries" was to include all actions for injuries to the person whether to the person's rights or to his body.

319 S.W.2d at 584 (emphasis added). The state supreme court's analysis directly contradicts the sole argument defendants raise in support of their assertion that Small's claims should not survive his death: that claims "personal" to the party abate at his or her death.

Conversely, the law has been interpreted narrowly in that courts have refused to read additional surplusage into the restrictive language of § 537.030. Gray, 319 S.W.2d at 585-86 (Mo.1958); White v. Walsh, 649 F.2d 560, 562-63 n. 4 (8th Cir. 1981) (citing Gray). The Gray court emphatically stated: "... however much that or other speculation may serve to explain, the fact remains that we must construe the language of present sections 537.020 and 537.030 as it plainly appears...." Gray, 319 S.W.2d at 586 (emphasis added); see also White, 649 F.2d at 563 n. 4; Pritchard v. Smith, 289 F.2d 153 (8th Cir.1961) (court of appeals held that claims under section 1983 survive under Arkansas law because only claims for slander and libel are expressly excluded). To the contrary, the courts in Alsup and Carter were willing to read additional language into the states' survival statutes to reach their decision that claims under Section 1981 abate upon a party's death.

Based on the Supreme Court of Missouri's analysis in Gray, and the Eighth Circuit's approval of that language in White, this court does not find it appropriate to add to the language of § 537.030. Aside from declining to second guess what the state legislature had in mind when it drafted the law, the state supreme court already has rejected the sole rationale defendants advance in support of their argument for...