Wright ex rel. Wright v. United States

914 F.Supp.2d 837

Anthony WRIGHT, for and on behalf of His Wife, Stacey Denise Scott WRIGHT, Deceased, and on behalf of all Wrongful Death Beneficiaries, Plaintiff

v.UNITED STATES Of America, United States Department of Homeland Security, Janet Napolitano, Ruben Orlando Benitez and Landmark of D'Iberville, LLC, Defendants.

Civil Action No. 3:12CV514TSL–MTP.

United States District Court,

S.D. Mississippi,

Jackson Division.

Dec. 7, 2012.

David L. Merideth, David L. Merideth, PLLC, Ridgeland, MS, John Richard Barry, John G. Roach, III, Hammack, Barry, Thaggard & May, LLP, Meridian, MS, for Plaintiff.

David H. Fulcher, U.S. Attorney's Office, Edwin S. Gault, Jr., Caroline M. Upchurch, Jordan V. McKibben, Forman, Perry, Watkins, Krutz & Tardy, LLP, Jackson, MS, James L. Davis, III, Law Offices of Jim Davis, Gulfport, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants United States of America, the United States Department of Homeland Security and Janet Napolitano, to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim for which relief can be granted. Plaintiff Anthony Wright has responded in opposition to the motion and the court, having considered the memoranda of authorities submitted by the parties, concludes the Government's motion is well taken and should be granted.

On September 17, 2011, Stacey Denise Scott Wright, an employee of the Transportation Security Administration (TSA), an agency of the U.S. Department of Homeland Security, was stabbed to death at her apartment in D'Iberville, Mississippi. Her supervisor at TSA, defendant Ruben Orlando Benitez, has been arrested and indicted for her murder. Following Mrs. Wright's death, her husband, plaintiff Anthony Wright, discovered that his wife had been having an affair with Benitez.

After filing a Notice of Claim for wrongful death with the TSA, which was denied, and also purporting to file a complaint of sex discrimination on behalf of Stacey Wright with the TSA's EEO office, Mr. Wright, for and on behalf of Stacey Wright, deceased, and on behalf of all wrongful death beneficiaries, filed the present action on July 23, 2012 against the Government and Benitez, purporting to assert the following claims: (1) on behalf of Mrs. Wright, a claim for sexual harassment; (2) by Mr. Wright, individually, a claim for alienation of affection; (3) on behalf of Mrs. Wright and all wrongful death beneficiaries, claims for wrongful death; and (4) on behalf of Mrs. Wright, claims for negligence and assault and battery. The Government has now moved to dismiss each of these claims for one or more reasons, which the court now considers.

“[T]itle VII provides the exclusive remedy for employment discrimination claims raised by federal employees.” Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir.1996) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). Thus, the charge of sex discrimination/harassment set forth in the complaint herein is necessarily brought under Title VII. In its motion, the Government argues that as a matter of law, this court lacks jurisdiction over plaintiff's Title VII claim for sex discrimination/harassment on behalf of Stacey Wright since exhaustion of administrative remedies under Title VII is a jurisdictional prerequisite to suit, and Stacey Wright did not pursue administrative remedies under Title VII prior to her death. The Government further argues that even if a Title VII cause of action initiated by an employee prior to her death survives her death and may be pursued by her representative after her death, there is no authority that would allow an employee's representative to initiate a Title VII cause of action posthumously, where the employee took no steps to initiate a claim prior to her death. Finally, the Government argues that even if Anthony Wright did have standing to bring a Title VII claim on behalf of his deceased wife, the court lacks jurisdiction over such claim because he failed to timely pursue administrative remedies.

Prior to seeking judicial relief under Title VII relating to federal sector employment, an “aggrieved person” must exhaust her administrative remedies by filing a charge of discrimination with the EEO division of her agency. Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.2006). Federal regulations require that an aggrieved person who believes that she has been discriminated against to consult an EEO counselor within forty-five days of the date of the alleged discriminatory personnelaction in order to attempt to informally resolve the matter. 29 C.F.R. § 1614.105(a)(1); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). Plaintiff acknowledges this, but contends that the forty-five day time limit, although generally applicable to federal employees, does not apply to his wife's claim for two reasons: first, the harassment continued up to the point of her death, and her death rendered her incapable of initiating a complaint; and second, the forty-five day time limit applies to federal employees and upon her death, Stacey Wright ceased to be a federal employee.

In fact, the requirement of exhaustion applies not just to federal employees but to “[a]ggrieved persons who believe they have been discriminated against” in the context of federal sector employment. The administrative exhaustion requirement applies if the Title VII claims arise out of federal employment, regardless of whether the claimant ever was or remains a federal employee. See, e.g., Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir.1992) (affirming dismissal of wrongful termination Title VII case for failure to timely initiate EEO contact); Rafi v. Sebelius, 377 Fed.Appx. 24, 25 (D.C.Cir.2010) (affirming dismissal of failure to hire discrimination claims on ground that plaintiff did not contact EEO counselor until long after forty-five-day deadline). Plaintiff's argument on the latter point is thus rejected.

Of course, plaintiff is correct that Mrs. Wright's death did prevent her from initiating contact with TSA's EEO counselor relating to alleged discrimination which occurred in the forty-five days on and preceding her death. Nevertheless, the Government submits that the survivor of a deceased federal employee has no standing to initiate an EEO complaint on behalf of that former employee, and that since Mrs. Wright never raised any EEO issues prior to her death, they cannot be initiated by her husband after her death. The numerous courts that have considered whether a Title VII cause of action survives the death of the employee have consistently held that a Title VII cause of action that has been commenced prior to the employee's death survives the employee's death. See, e.g., Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d 357, 360 (10th Cir.1991) (holding that pending Title VII claim survived the plaintiff's death and substituting the plaintiff's wife as plaintiff); Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876 (11th Cir.1986) (holding that a pending action under Title VII survives under both federal common law and state law and that husband was properly substituted as plaintiff for his deceased wife) (citing James v. Home Constr. Co. of Mobile, 621 F.2d 727, 729–30 (5th Cir.1980)); Bligh–Glover v. Rizzo, No. 1:08CV2788, 2012 WL 4506029, *1 (N.D.Ohio Sept.30, 2012) (finding that plaintiff's pending Title VII cause of action survived his death); Estate of Trivanovich v. Gulfport–Biloxi Regional Airport Auth., Civil Action No. 1:06CV539–LG–JMR, 2008 WL 2779441, *2 (S.D.Miss. July 14, 2008) (finding that pending Title VII claim survived under either state or federal law and noting that Estate was substituted as plaintiff).

Likewise, the few courts to have considered the issue have held that a Title VII cause of action survives the employee's death and may be brought by the personal representative of the employee's estate where the employee died after initiating an administrative complaint for discrimination. See, e.g., Weeg ex rel. Weeg v. Ortiz and Associates, Inc., 556 F.Supp.2d 1188 (D.Or.2008) (finding that court had jurisdiction over Title VII cause of action where employee died after filing EEOC charge but before suit and employee's estate completed exhaustion of administrative remedies begun by employee); Estwick v. U.S. Air Shuttle, 950 F.Supp. 493, 498–99 (E.D.N.Y.1996) (finding that Title VII actions survived and wife had standing to file Title VII action after her husband died prior to EEOC's finding on husband's charge of discrimination); Pueschel v. Veneman, 185 F.Supp.2d 566, 571–572 (D.Md.2002) (holding that Title VII claim pressed by personal representative of deceased former employee may be adjudicated if employee effectively exhausted her administrative remedies and neither party is unfairly prejudiced by employee's death).

However, the court has found no case recognizing the authority of a deceased employee's representative to initiate an administrative complaint on behalf of the deceased employee. In Pueschel, the court did not decide the issue but acknowledged that the EEOC has ruled that “the survivor of a deceased federal employee has no standing to file an EEO complaint on behalf of the former employee. While a complaint initiated by a federal employee may survive her death, the estate of that employee has no right to file a complaint.” ¹Id. at 571.See Barnes v. United States Postal Serv., 1992 WL 1372734 (E.E.O.C. Oct. 30, 1992) (acknowledging certain instances where a federal employee's EEO complaint may survive his death, but finding it did not apply to complaints initiated by the employee's widow and not by the employee himself); Estate of Yao Hu v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Agency, 1996 WL 657792 (E.E.O.C. Nov. 6, 1996) (holding that...