Opinion
CASE NO. 5:20CV1248
2021-05-06
John W. HARRY, Executor of the Estate of Deceased Cynthia R. Harry, Plaintiff, v. KENT ELASTOMER PRODUCTS, INC., et al., Defendant.
Christina M. Royer, Stuart G. Torch, Elfvin, Klingshirn, Royer & Torch, Independence, OH, for Plaintiff. K. Ellen Toth, Samuel H. Ottinger, Ogletree Deakins Nash Smoak & Stewart, Cleveland, OH, for Defendant.
Christina M. Royer, Stuart G. Torch, Elfvin, Klingshirn, Royer & Torch, Independence, OH, for Plaintiff.
K. Ellen Toth, Samuel H. Ottinger, Ogletree Deakins Nash Smoak & Stewart, Cleveland, OH, for Defendant.
ORDER
[Resolving ECF Nos. 15, 19]
Benita Y. Pearson, United States District Judge Pending before the Court are Plaintiff's motions to file an Amended Complaint. ECF Nos. 15, 19. The Court has also solicited, received, and reviewed briefing from the parties concerning Plaintiff's standing to bring the claims asserted. ECF Nos. 16, 17, 18, 20. The Court construes Plaintiff's motion to modify the proposed Amended Complaint (ECF No. 19 ) as withdrawing the earlier-filed Amended Complaint (ECF No. 15 ). Accordingly, the Court denies ECF No. 15 as moot, and will only analyze the Plaintiff and claims asserted in the most recently filed proposed Amended Complaint (ECF No. 19-1 ). For the following reasons, the Court grants ECF No. 19. Plaintiff will file his Amended Complaint (ECF No. 19-1 ) on the docket as soon as possible, but in no event later than the close of business on May 7, 2021. Defendants shall respond on or before May 14, 2021.
Plaintiff's first proposed Amended Complaint sought to add additional plaintiffs to this action. ECF No. 15. Plaintiff has expressed that he no longer seeks to add additional parties. ECF No. 19 at PageID #: 166. Accordingly, the Court will not evaluate the potential standing of the proposed co-plaintiffs. Similarly, because Plaintiff no longer seeks to pursue breach of contract or ERISA claims, the Court will not assess the parties’ arguments as to those claims.
I. Background
Plaintiff filed this gender discrimination action as the executor of his wife's estate. Plaintiff seeks to proceed against his wife's former employer, Kent Elastomer Products, Inc., and its President, Robert R. Oborn, on three causes of action: 1) the Federal Equal Pay Act; 2) O.R.C. § 4112.02(A) ; and 3) O.R.C. § 4112.02(J). ECF No. 19 at PageID #: 166. Plaintiff asserts that, for approximately 13 months, his wife was paid an annual salary of approximately $80,000. ECF No. 19-1 at PageID #: 172. Plaintiff asserts that, during the same period, a similarly situated male coworker was paid an annual salary of $110,000, and that the difference in base salaries is attributable to gender discrimination. Id.
"For any employer, because of the race, color, religion, sex, military status, national origin, disability, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." O.R.C. § 4112.02(A).
"For any person to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, to obstruct or prevent any person from complying with this chapter or any order issued under it, or to attempt directly or indirectly to commit any act declared by this section to be an unlawful discriminatory practice." O.R.C. § 4112.02(J).
This case has an atypical procedural posture in that the estate is the original plaintiff. Often when an estate is the plaintiff, it became so by being substituted for an employee who had filed a claim during her lifetime, but passed away during the pendency of litigation. Indeed, neither the parties nor the Court have been able to find a case postured, from its origin, like this one. That is, a case alleging discrimination rather than, for example, personal injury or wrongful death, which was brought in the first instance by an estate rather than by the employee allegedly discriminated against.
II. Standing and Claim Survival
"From Article III's limitation of the judicial power to resolving "Cases" and "Controversies," and the separation-of-powers principles underlying that limitation, [the Supreme Court has] deduced a set of requirements that together make up the ‘irreducible constitutional minimum of standing.’ " Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 125, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Specifically, a plaintiff "must demonstrate that he has [Article III] standing to pursue his claim in federal court by showing three elements: (1) that he has suffered an ‘injury in fact,’ (2) that there is a ‘causal connection between the injury and the conduct complained of,’ and (3) that it is ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’ " Kiser v. Reitz , 765 F.3d 601, 607 (6th Cir. 2014) (quoting Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130 ). "Executors [who] bring suit to benefit testator estates" are commonly recognized to have Article III standing when the decedent would. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc. , 554 U.S. 269, 288, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008).
"Federal courts, it was early and famously said, have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. Jurisdiction existing, this Court has cautioned, a federal court's obligation to hear and decide a case is virtually unflagging." Sprint Commc'ns, Inc. v. Jacobs , 571 U.S. 69, 77, 134 S.Ct. 584, 187 L.Ed.2d 505 (2013) (citations and quotation marks omitted).
That said, there are some additional broad principles, previously referred to by the "misnomer[s]" of "prudential standing" and "statutory standing" which impact a litigant's ability to bring a question to a court for resolution: " ‘[T]he general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.’ " Lexmark , 572 U.S. at 126, 134 S.Ct. 1377 (citations omitted). As relevant to this case, whether a specific claim survives the death of an injured party, as well as whether the claim may only be pursued initially by the injured party, can impact the first and third questions. While these questions sometimes overlap with discussions related to standing, they are, in fact, a substantive analysis of what is authorized by statute, using traditional cannons of statutory construction. Id. at 126-28, 134 S.Ct. 1377.
III. Federal Equal Pay Act Claim
Defendants do not dispute that, had Ms. Harry brought this claim during her lifetime, that the claim would survive, and it would be appropriate for Plaintiff to be substituted into ongoing litigation. The parties appear to agree that, as to the federal claim, that the requirements of Article III are satisfied, and the Court has no basis to find otherwise. See Werner v. Potter , No. 04-C-0557(E), 2006 WL 839156, at *23 (E.D. Wis. Mar. 24, 2006) ("Under traditional Article III analysis, the estate appears to have standing insofar as it stands in the shoes of the decedent who is alleged to have suffered an injury in fact.").
"In the absence of Congressional intent to the contrary, the question of the survival of an action based upon federal law is governed by federal common law." Pokorney v. Miami Valley Career Tech. Ctr. , No. 3:94CV247, 1997 WL 1764769, at *5 (S.D. Ohio Mar. 31, 1997) (collecting cases). "Under the federal common-law rule for the survivability of statutory causes of action, ‘remedial’ claims—i.e., claims to compensate the plaintiff—survive a party's death, whereas ‘punitive’ claims—i.e., claims to punish the defendant—do not." Parchman v. SLM Corp. , 896 F.3d 728, 738 (6th Cir. 2018) (cleaned up). To determine whether a statute is penal or remedial, courts examine three factors: "1) whether the purpose of the statute was to redress individual wrongs or more general wrongs to the public; 2) whether recovery under the statute runs to the harmed individual or to the public; and 3) whether the recovery authorized by the statute is wholly disproportionate to the harm suffered." Murphy v. Household Fin. Corp. , 560 F.2d 206, 209 (6th Cir. 1977). "[C]auses of action under ... [the Federal Equal Pay Act] survive to the representatives of their estates." Acebal v. United States , 60 Fed. Cl. 551, 557 (2004).
Defendants only argue that estates, as a policy matter, should be prohibited from bringing such a claim in the first instance. ECF No. 18 at PageID #: 155-56. Defendants analogize the Equal Pay Act Claim to other claims involving discrimination and wage loss, such as title VII claims, and urge the Court to adopt the policy of the EEOC, which is that it will, generally, only accept administrative complaints initially raised by the employee themselves, either personally or through a representative. Id. (collecting authorities). As Plaintiff notes, the cases and administrative decisions cited involve statutorily imposed exhaustion requirements, which are not at issue in this case. The cases cited by Defendant are predicated on the estate's failure to satisfy an element of its claim – exhaustion – not on any theory that the estate lacks standing. The Court will not graft a statutory exhaustion requirement from discrimination statutes and regulations not at issue in this case onto the concept of Article III standing, or the Equal Pay Act. Accordingly, the Court concludes that standing is not a barrier to Plaintiff's pursuit of an Equal Pay Act claim.
Defendants primarily cite to EEOC administrative decisions, which do not analyze federal standing principles, but also to a District Court decision: Werner v. Potter , No. 2:04CV557, 2006 WL 839156 at *25 (E.D. Wis. Mar. 24, 2006). Contrary to Defendants’ assertion that the Werner Court found that "estate did not have standing[,]" ECF No. 18 at PageID #: 156, the Werner Court concluded that Article III was satisfied, but that further discovery would be required to determine whether the estate was capable of stating a claim under the Rehabilitation Act in light of the plaintiff's assertion that the administrative exhaustion requirement was subject to considerations including the decedent's mental capacity to initiate a claim during her lifetime, equitable tolling, and estoppel. The Werner docket reflects that the case subsequently settled, without further substantive order from the court.
"[T]he Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts." County of Washington v. Gunther , 452 U.S. 161, 175 n. 14, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981).
IV. Ohio Revised Code § 4112.02 Claims
As to the Ohio gender discrimination claims, the dispute between the parties is whether the claims survive Ms. Harry's death. Defendants argue that because "this is a wage case," the claims do not support a conclusion that Ms. Harry suffered a "psychic injury" or severe emotional distress, and therefore do not survive her passing, regardless of whether she had initiated the litigation. ECF No. 18 at PageID #: 156-58.
"Whether the death of a party extinguishes a claim for or against him is not a question of procedure. It is a question of substance on which the state law ordinarily governs." Wright, Miller and Kane, Federal Practice and Procedure, Civil 2d § 1952. And, "Whether an action survives the death of a party must be
determined by looking to the law, state or federal, under which the cause of action arose." Wright, Miller and Cooper, Federal Practice and Procedure , Jurisdiction 2d § 4518. Here, the cause of action arises under the Ohio Revised Code. Accordingly, the issue herein is governed by state law.
Richardson v. Insite Sys., Inc. , No. 1:00CV979, 2001 WL 37131389, at *1 (N.D. Ohio Mar. 5, 2001). The relevant Ohio statute provides:
SURVIVAL OF ACTIONS
In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.
O.R.C. § 2305.21 (emphasis added). Accordingly, Ohio law appears to expressly contemplate the situation we have here—an action initiated following the death of the natural claimant.
Courts analyzing the survival statute are also typically required to consider the abatement statute. Witcher v. City of Fairlawn, 113 Ohio App.3d 214, 680 N.E.2d 713 (1996).
ABATEMENT BY DEATH OF PARTY
Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party.
O.R.C. § 2311.21. Because Ms. Harry did not bring this case, there is no cause for the Court to consider abatement. There is also no reason to believe that the abatement statute would alter the Court's analysis had the state law claims initially been brought by Ms. Harry, as the employment claims are not of a kind with the exceptions listed in the abatement statute.
The parties frame the employment discrimination claims as a claim of "injuries to the person[.]" Ohio law provides that such a cause of action survives, as relevant here, where "psychic injury" is alleged. Bowman v. Parma Bd. of Educ. , 44 Ohio App.3d 169, 542 N.E.2d 663 (1988) ("A claim for ‘psychic’ injury or infliction of serious emotional distress survives the death of the person upon whom the injury or distress was inflicted."); see also Kelly v. Greene , No. 66359, 1994 WL 547767, at *2 (Ohio Ct. App. Oct. 6, 1994) (claims for interference with contractual relations and sexual harassment survive). Plaintiff argues he has successfully pled such an injury:
The Complaint alleges two counts of sex discrimination under Ohio Revised Code Chapter 4112. In both counts, the Complaint alleges that "Cynthia Harry suffered mental anguish, humiliation, and other emotional distress," and seeks relief in the form of "compensatory damages" and "punitive damages." See ECF No. 1 at ¶¶ 40, 41 ; 45, 46. Because these Counts allege injuries that are personal to Ms. Harry and seek damages that Ohio courts have found to be personal in nature, her claims under R.C. 4112 survive her death and may be brought by her Executor.
These same allegations are contained in Plaintiff's proposed modified Amended Complaint. See ECF No. 19-1 at ¶¶ 37, 38 ; 42, 43.
ECF No. 20 at PageID #: 185 (footnote in original).
Federal district courts in Ohio have generally found that § 4112.02 discrimination claims, in which a party pleads the existence of a "psychic injury" or serious emotional harm fall within the meaning of "injuries to the person[,]" and survive the employee. Huggard v. United Performance Metals, Inc. , No. 1:10CV63, 2011 WL 6817770, at *3 (S.D. Ohio Dec. 28, 2011), report and recommendation adopted absent objection , 2012 WL 368222 (Feb. 3, 2012) (state law claims for severe emotional distress resulting from defendant's unlawful discrimination and retaliation survive); Carney v. Stericycle, Inc. , No. 4:06CV1473, 2007 WL 2236605, at *3 (N.D. Ohio July 31, 2007) (state law claims for sex and age discrimination did not abate upon plaintiff's death because "psychic injuries such as emotional distress are recognized in Ohio as claims for physical harms.").
An Ohio appellate Court, in analyzing a § 4112.02 claim under Ohio's survival scheme, stated that "[t]he survival statute, though not strictly applicable, does indicate a public policy in favor of the survival of actions." Miami Univ. v. Ohio Civ. Rts. Comm. , 133 Ohio App.3d 28, 726 N.E.2d 1032, 1048 (1999). However, Miami University is of limited value given not only its acknowledgement that the survival statute was not "strictly applicable" to its analysis, because it involved a claim brought by the Ohio Civil Rights Commission rather than by the prospective employee who had allegedly been discriminated against, but also because it cites only to the (broader) abatement statute, not to the survival statute.
In its research, the Court has located a single contrary authority: Richardson v. Insite Sys., Inc. , No. 1:00CV979, 2001 WL 37131389, at *1 (N.D. Ohio Mar. 5, 2001). The court in Richardson concluded, as Defendants urge, that a claim for discrimination which focuses on wages, and does not include specific factual allegations supporting the existence of extreme emotional distress, like the suicide at the center of the motion to substitute in Bowman , are not properly described as "injuries to the person[.]" Id. at *3.
The Court notes that the arguments presented by plaintiffs in Richardson were not directly on-point with those Plaintiff advances. In Richardson , "plaintiff cite[d] only to the abatement statute, ignoring the survival statute." Richardson. , 2001 WL 37131389, at *2. The Court has reviewed both the operative complaint and briefing from Richardson. Although the operative complaint alleged, inter alia , "loss of reputation, emotional distress, humiliation, embarrassment, [and] loss of self-esteem[,]" Richardson , 1:00CV979, ECF No. 15 at PageID #: 55 (N.D. Ohio Dec. 11, 2000), Richardson's plaintiff did not advance any argument concerning an alleged psychic injury in its briefing, other than to assert, without reference to the complaint or any particular allegation, that "the claims in issue seek to remedy, at least in part, psychic injury." Id. , ECF No. 18 at PageID #: 80. Richardson's plaintiff did not, as Plaintiff does here, meaningfully contest that the case was only about wages.
Richardson is not unpersuasive. Bowman did not discuss emotional distress generally, but specific degrees of emotional distress: "Implicit in the recognition of tort claims for psychic injury of a severe nature is that such claims are claims for injury to the person which would survive death[.]" 542 N.E.2d at 671 (emphasis added); see also id. ("If a particularly diabolical infliction of emotional distress drives a person to suicide , claims for infliction of that emotional distress would survive the victim's demise.") (emphases added). Generic allegations of emotional distress, such as those made by Plaintiff, do appear to be of a different degree than the psychic injury in Bowman .
However, the Court is convinced that discussion of the degree of psychic injury is more appropriately left for summary judgment, and that Plaintiff's allegations are sufficient at the pleading stage. See Frank v. FAF, Inc. , No. 1:17 CV 2437, 2018 WL 6567724, at *3 (N.D. Ohio Dec. 13, 2018) ("Here, plaintiff alleges that Elliott suffered severe emotional distress in the form of ‘pre-death terror, physical pain, and mental anguish up to the time of his death.’ Broadly construed, plaintiff's ‘survival action’ asserts claims for negligence and negligent infliction of emotional distress."); Tinney v. Richland Cty. , No. 1:14CV703, 2014 WL 6896256, at *3 (N.D. Ohio Dec. 8, 2014) ("Defendant argues that plaintiff must "allege at least some specific facts to show that his or her emotional distress is particularly severe." (Doc. 27 p. 7). The Court disagrees. ... Plaintiff has alleged that he suffered ‘severe, debilitating emotional distress’ because of defendant's actions. (Comp.¶ 116). Having alleged a psychic injury which is considered a physical injury under Ohio law, plaintiff's claim does not abate under Ohio law."). Accordingly, the Court sees no reason to reject or restrict the proposed Amended Complaint based on its incision of state law discrimination claims.
Tinney has a complicated procedural history, unrelated to that court's determination that the state law claims survived at the pleading stage. Jackson v. City of Cleveland , 925 F.3d 793, 810-11 (6th Cir. 2019).
V. Punitive Damages
Defendants argue that Plaintiff is not entitled to punitive damages. ECF No. 18 at PageID #: 163. Such argument is premature before the conclusion of discovery, as punitive damages are a remedy, not a claim. A demand for punitive damages would not provide a basis for dismissal, even if raised in a 12(b) or 12(c) motion rather than in response to a call for briefing by the Court on the issue of standing. While Defendants do not argue that Ms. Harry's passing impacts her estate's ability to pursue punitive damages, the Court notes that it is settled Ohio law that "the right to punitive damages continues when an injured plaintiff has died and the plaintiff's claim is pursued by a representative of his or her estate." Whetstone v. Binner , 146 Ohio St.3d 395, 57 N.E.3d 1111, 1114 (Ohio 2016).
"A claim for punitive damages is not an independent claim in Ohio; rather, it is a remedy." Ross v. PennyMac Corp. , No. 1:17CV636, 2018 WL 2215924, at *4 (S.D. Ohio May 15, 2018), aff'd sub nom. , Ross v. PennyMac Loan Servs. LLC , 761 F. App'x 491 (6th Cir. 2019) (citing Shoup v. Doyle , 974 F.Supp.2d 1058, 1087 (S.D. Ohio 2013) ).
See, e.g. , Monaco v. Liberty Life Assur. Co. , 2007 WL 420139, at *6 (N.D. Cal. Feb. 6, 2007) ("Defendants argue that there is no basis for Plaintiff's claim for punitive damages. However, a complaint is not subject to a motion to dismiss for failure to state a claim under Rule 12(b)(6) because the prayer seeks relief that is not recoverable as a matter of law."); In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigations , 517 F. Supp. 2d 662, 666 (S.D.N.Y. 2007) ("Punitive damages are not a claim and thus it makes little sense for defendants to move to dismiss [ ] claims for punitive damages.") (emphasis in original); Douglas v. Miller , 864 F.Supp.2d 1205, 1220 (W.D. Okla. 2012) ("With respect to the issue of punitive damages, whether such damages are recoverable is not a proper subject for adjudication in a Rule 12(b)(6) motion, as the prayer for relief is not a part of the cause of action."); Benedetto v. Delta Air Lines, Inc. , 917 F. Supp. 2d 976, 984 (D.S.D. 2013) ("punitive damages are a form of relief and not a ‘claim’ that is subject to a Rule 12(b)(6) motion to dismiss"); Security Nat. Bank of Sioux City, Iowa v. Abbott Labs. , 2012 WL 327863, at *21 (N.D. Iowa Feb. 1, 2012) ("punitive damages are not a cause of action, and as such ... are not subject to a motion to dismiss.").
VI. Conclusion
For the following reasons, the Court grants Plaintiff's motion to file an Amended Complaint, ECF No. 19, and denies ECF No. 15 as moot. Plaintiff shall file his Amended Complaint (ECF No. 19-1 ) on the docket as soon as possible, but in no event later than the close of business May 7, 2021. Defendants shall respond on or before May 14, 2021.
IT IS SO ORDERED.