Justin Guenther, Special Administrator, Estate of Semmie John Guenther Plaintiff- Appellant
Griffin Construction Company, Inc. Defendant-Appellee Equal Employment Opportunity Commission Amicus on Behalf of Appellant
Submitted: September 21, 2016
from United States District Court for the Western District of
Arkansas - Fayetteville
RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
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.
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.
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. See Fed.R.Civ.P. 12(c).
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.
a federal claim survives is a question of federal law.
See Carlson v. Green, 446 U.S. 14, 23 (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
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).
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 (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 (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
(quoting United States v. Standard Oil Co. of Cal.,
332 U.S. 301, 310 (1947)). Contrary to the district
court's opinion, we are convinced the relevant
considerations weigh in favor of a uniform rule of
state law should not be incorporated where doing so would
"'frustrate specific objectives of the federal
programs.'" Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 98 (1991) (quoting Kimbell Foods,
Inc., 440 U.S. at 728). "[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 (1979) (quoting Wallis v. Pan Am. Petroleum
Corp., 384 U.S. 63, 68 (1966)).
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 (considering broad application of the ADA's