Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nall v. BNSF Railway Co.

United States District Court, S.D. Texas, Houston Division

June 28, 2019

FLORA NALL, Plaintiff,
v.
BNSF RAILWAY COMPANY, et al, Defendants.

          ORDER

          ANDREW S. HANEN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Before the Court are Defendant BNSF Railway Company's ("BNSF") unopposed Motion for Leave to File Motion for Judgment on the Pleadings [ECF No. 84] and its Motion for Judgment on the Pleadings Based on Non-Survivability of the Remaining Claims [ECF No. 85]. Plaintiff Flora Nail, the widow of Michael Nail ("Nail"), has filed a Response to Motion for Judgment on the Pleadings in opposition [ECF No. 93]. Having considered the motions, responses, and the relevant law, the Court GRANTS Defendants unopposed Motion for Leave to File and DENIES Defendant's Motion for Judgment on the Pleadings Based on Non-Survivability of the Remaining Claims.

         II. Background

         Nail sued his former employer, BNSF, in October 2014 alleging disability discrimination under Chapter 21 of the Texas Labor Code-Texas Commission on Human Rights Act ("TCHRA") and under the Americans with Disabilities Act ("ADA") amongst other claims that have been previously dismissed. See Tex. Lab. Code. § 21.125; 42 U.S.C. 12101. Though Nail had Parkinson's disease, his doctor cleared him for work. After returning from medical leave, he was determined ineligible to continue working as a trainman after BNSF conducted medical evaluations. Nail recently passed away for reasons unrelated to his Parkinson's diagnosis, and his wife was substituted as Plaintiff as a representative of his estate [ECF No. 93; ECF No. 86, Ex. C]. After the substitution, BNSF moved for a Judgment on the Pleadings for both the TCHRA and ADA claims, asserting that the claims do not survive Nail's death [ECF No. 85].

         Although the Nails originally brought several claims, the only remaining issues before this Court on remand are Nail's TCHRA and ADA claims. Additionally, while this issue was not raised in the briefing, the Court notes that Flora Nail does not have her own standalone cause of action before the Court.[1] Flora Nail appears before this Court solely as a representative of Nail's estate for his two remaining claims.

         III. Applicable Law

         The law surrounding the survivability of causes of action under the TCHRA and ADA is not clear in either federal or state courts. Neither the TCHRA nor ADA provide statutory guidance on the survival of a deceased plaintiffs cause of action. Although somewhat murky, the weight of authority of relevant case law indicates that Nail's disability discrimination claims under the TCHRA and ADA should survive under the Texas Survival Statute and under federal common law for the reasons explained below.

         A. Texas State Law: TCHRA Claim

         Under common law, a plaintiffs death terminated his or her claim. Robertson v. Wegmann, 436 U.S. 584, 589 (1978). In Texas, however, the Legislature adopted the Texas Survival Statute that superseded the common-law rule in specific causes of action. Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (1985). Under this statute, a plaintiffs claim survives if it is a "personal injury to the health, reputation, or person of an injured person." Id. One objective under the TCHRA is to "secure for persons in this state, including persons with disabilities, freedom from discrimination in certain employment transactions, in order to protect their personal dignity[.]" Tex. Lab. Code § 21.001(4). The TCHRA does not indicate if causes of action arising specifically under its provisions survive a plaintiffs death.

         Nail's TCHRA cause of action arises under Texas law, and the Court accordingly looks to the Texas Survival Statute in its analysis. The Supreme Court held that when federal law is silent, the Court may adopt state survival statutes if it is not "inconsistent with the Constitution and the laws of the United States." Robertson, 436 U.S. at 589-90. The Fifth Circuit has not specifically addressed whether a TCHRA claim falls within the Texas Survival Statute. As there is no case deciding the issue, the parties have directed the Court's attention to cases involving the application of state survival statutes to allegedly analogous causes of action.

         For example, a court in the Southern District of Texas has held that a Title VII racial discrimination cause of action did survive the plaintiffs death under the Texas Survival Statute in Hamilton v. Rogers. 573 F.Supp. 454 (S.D. Tex. 1983). In Hamilton, the plaintiff died after filing a Title VII claim alleging "mental and emotional distress," "high blood pressure [, ] and other health problems." Id. at 453. The Court looked to the Texas Survival Statute and adhered to the Supreme Court of Texas' construction in Vassallo v. Nederl-Amerik Stooms Maats Holland, where that court provided a liberal construction of the survival statute and dictated that its ultimate purpose was for "any cause of action . . . [to] not be abated by death." Id. at 454 (quoting 344 S.W.2d 421, 426 (Tex. 1961)). The Court finds this opinion instructive for the case at hand.

         Nevertheless, BNSF asks the Court instead to follow the reasoning in the Fifth Circuit's decision in Plumley v. Landmark Chevrolet, Inc. and find that Nail's TCHRA claim does not fall within the Texas Survival Statute. 122 F.3d 308 (5th Cir. 1997). BNSF argues that Nail's claim is more analogous to the claim in Plumley, in which the plaintiff died after bringing an intentional infliction of emotional distress ("IIED") claim. Id. at 309-310. In that case, the Fifth Circuit held that the claim did not fall within the Texas Survival Statute's scope of an injury to health, reputation, or body. Id. at 311. BNSF also points to a similar ruling in Andrade v. Chojnacki. 65 F.Supp.2d 431 (W.D. Tex. 1999). In Andrade, the Western District of Texas held that plaintiffs' Bivens, § 1983, § 1985, and state law causes of action under were not recoverable under the Texas Survival Statute because the claims were "based upon purely mental or emotional injury . . . [, ]" citing Plumley. Id. at 448. BNSF stresses that Nail's TCHRA claim is solely a mental or emotional injury, however. These decisions do not directly establish whether disability discrimination claims should be treated in the same manner as an IIED claim or Bivens, § 1983, and § 1985 civil rights causes of action. While these claims can be similar, the Fifth Circuit has not indicated that IIED and disability discrimination claims should be treated alike.[2]

         Like the federal courts, Texas courts have also not specifically addressed whether a TCHRA claim survives a plaintiffs death under the Texas Survival Statute. Texas courts, however, have consistently held that similar ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.