I. INTRODUCTION
Plaintiffs Laverne Kulling, Richard A. Beal, and William A. Scheib brought suit in this Court on September 3, 1999, alleging that Plaintiffs Beal and Scheib and Plaintiff Kulling’s late husband, Carl G. Kulling, were unlawfully discharged from their employment with Defendant Toyoda Machinery U.S.A. Corporation (“Toyoda”) and its wholly-owned subsidiary, Defendant Grinders For Industry, Inc. (“GFI”), in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff Kulling also has asserted a derivative claim for loss of consortium, as well as a derivative claim as personal representative of the estate of Carl Kulling, seeking additional monetary damages under Michigan’s wrongful death statute, Mich.Comp.Laws § 600.2922, for Mr. Kulling’s suicide just over two months after Defendants terminated his employment.
By motion filed on May 19, 2000, Defendants now seek an - award of summary judgment in their favor on all of Plaintiffs’ claims. 1 In support of this motion, Defendants argue (i) that the challenged employment actions were part of a reduction-in-force (“RIF”) undertaken for purely economic reasons, and were not motivated by improper considerations of age; and (ii) that Plaintiffs have failed to establish a sufficient causal connection between Carl Kulling’s discharge and his subsequent suicide to warrant an award of wrongful death damages. Plaintiffs responded to this motion on June 13, 2000, and Defendants filed a reply brief in further support of their motion on- June 28, 2000. 2 Finally, on August 4, 2000, the parties filed supplemental briefs addressing various legal issues surrounding Plaintiff Kulling’s request for wrongful death damages.
On July 27, 2000, the Court heard oral argument on Defendants’ motion. Having reviewed the briefs and supporting materials submitted by the parties, and having considered the arguments of counsel at the July 27 hearing, the Court is now prepared to rule on this motion. This Opinion and Order sets forth the Court’s ruling.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Defendant GFI is a wholly-owned subsidiary of Defendant Toyoda, which purchased GFI in 1987. GFI is part of the Grinding Machine Division (“GMD”) of Toyoda, and is in the business of re-manufacturing and rebuilding used grinders. Plaintiffs Beal and Scheib and the late husband of Plaintiff Kulling, Carl Kulling, all were employed by GFI prior to its acquisition by Toyoda, and they continued as employees at Defendants’ facility in Wixom, Michigan following this acquisition. 3
Each Plaintiff held a supervisory middle-management position at the time he was discharged on November 7, 1997. Carl Kulling began working for GFI on November 9, 1972 as an Electric Panel Builder, and held the position of Shipping and Receiving Supervisor at the time of his discharge. Plaintiff Beal was first employed by GFI in December of 1972, and had the title of Purchasing Manager in
B. The Circumstances Surrounding Plaintiffs’ Discharges
According to Defendants, Plaintiffs were terminated pursuant to a reduction-in-force (“RIF”) carried out by Defendants in late 1997 and early 1998. Toyoda’s president, Howard Michael, testified at his deposition that Defendants’ GMD had sustained losses the previous few years, and that he elected to reduce this division’s workforce by twenty employees in order to avoid shutting down the division altogether. Michael instructed Gary Blanchard, the vice president and general manager of GMD, to implement this RIF. Blanchard, in turn, consulted with GFI’s senior director of operations, Paul Lefief, and GFI’s director of engineering, Eddie McClymont, regarding the selection of the 20 employees to discharge.
Paul Lefief recommended that the supervisory positions held by Carl Nulling and Plaintiff Beal be eliminated. He testified that, in making these decisions, he “looked at the position that they played in the structure, if I had another manager that could do their job, I looked at how many people reported to them.” (Defendants’ Motion, Ex. 3, Lefief Dep. at 17.) In both eases, Lefief testified that he had identified one or more existing employees who could assume the functions previously performed by Hulling and Beal. Lefief denied that age, years of service, salary, or proximity to retirement played any role in his recommendations. (Id at 17-18.)
For his part, Eddie McClymont suggested to Gary Blanchard that Plaintiff Scheib’s position be eliminated. In his affidavit, McClymont states that he determined that the Engineering Department could afford to eliminate a management position, and that Scheib was the “logical choice because he was the only one at management level in the mechanical engineering section.” (Defendants’ Motion, Ex. 4, McClymont Aff. at ¶ 6.) McClymont further states that he assumed Scheib’s management responsibilities, and that two other employees were assigned to handle Scheib’s remaining duties in addition to their existing job functions.
The first set of terminations occurred on November 7, 1997, and included all three Plaintiffs. Each Plaintiff executed a “Severance Agreement and General Release,” (Defendants’ Motion, Ex. 5), and each received severance pay. 4 In all, five salaried employees were discharged on November 7,1997 as part of Defendants’ RIF plan for the GMD, and two more salaried employees were discharged in January of 1998 pursuant to this plan. 5 Each of these seven discharged employees was over 50 years of age, leaving 19 remaining salaried employees over the age of 50. In contrast, the RIF did not affect any of Defendants’ 43 salaried employees under the age of 50.
The parties dispute Defendants’ stated economic basis for implementing a RIF. As noted earlier, Toyoda’s president, Howard Michael, testified that Defendants’
The parties also dispute whether Plaintiffs’ positions were eliminated, or whether Plaintiffs actually were replaced by others performing essentially the same tasks. Plaintiffs concede that no new employees were hired to assume their former job responsibilities, and that existing employees took on these duties. Yet, while Defendants maintain that several existing employees assumed Plaintiffs’ various job functions in addition to their current duties, Plaintiffs contend that Defendants made one-for-one exchanges, in each case replacing one of the Plaintiffs with a substantially younger employee. In support of this assertion, Plaintiffs rely principally on interrogatory responses in which Defendants identified three specific individuals — Gordon Roe, Scott Miller, and Shawn Schultz — as the “Replacement person[s]” for the three Plaintiffs, while others who also were discharged as part of the RIF are not listed as having been replaced by a particular existing employee. (See Plaintiffs’ Response, Ex. B, interrogatory responses.) 6 Plaintiffs also point to. evidence that the three “replacement” employees, all of whom were age 40 or younger, all were promoted to supervisory positions within a short time after Plaintiffs were discharged. This seemingly casts doubt on Defendants’ claim that Plaintiffs’ positions were eliminated as unnecessary, with their duties spread among several remaining employees.
Finally, each Plaintiff has testified as to allegedly age-based comments made by Defendants’ management when called upon to explain the challenged employment decisions. Richard Beal testified that, upon learning of his discharge, he was told by Paul Lefief that he was “the first of a number of retirement age employees being let go.” (Plaintiffs’ Response, Ex. C, Beal Dep. at 64.) William Scheib testified that Eddie McClymont advised him of his termination, and further stated that there was a “corporate plan by Howard Michael and Gary Blanchard to bring ... the younger employees up the ladder.” (Plaintiffs’ Response, Ex. D., Scheib Dep. at 59.) Similarly, Laverne Kulling testified that she met with Gary Blanchard on the day her husband was discharged, and that Blanchard told her that “the company was downsizing, and they were letting go of the older, more senior people.” (Plaintiffs’ Response, Ex. A, Kulling Dep. at 108.) 7 Defendants, however, have produced deposition testimony and affidavits denying that these statements were made.
C. Carl Kulling’s Suicide Following His Discharge
As noted earlier, Plaintiff Laverne Kull-ing seeks an additional award of damages
Mrs. Kulling testified that she first noticed symptoms of her husband’s depression at her son’s wedding on December 13, 1997, approximately one month after Mr. Kulling was discharged. On January 2, 1998, Mr. Kulling sought treatment for his depression from his family physician, Dr. Edward Pearce. Dr. Pearce prescribed Zoloft, an anti-depressant, and referred Mr. Kulling for psychiatric evaluation.
On January 17,1998, Mr. Kulling visited Dr. Sander J. Breiner, a psychiatrist. During this session, Mr. Kulling reportedly complained of depression and inability to function following his job loss. 8 Mr. Kulling reported his symptoms as weight loss, as well as pacing and restlessness beginning approximately three weeks earlier. He stated his concern that he might be unable to work, and that he might lose his home and wife. Although Mr. Kulling was unable to identify the basis for his depression and anxiety, he spoke of an “administrative routine” he had developed in connection with his prior job, and noted that his new job, while similar, involved a different routine. (Defendants’ Motion, Ex. 16.) Dr. Breiner’s notes also indicate that Mr. Kulling reported some difficulties in his marriage. During this visit, Dr. Breiner also spoke with Mr. Kulling’s wife and daughter. Following this session, Dr. Breiner made an initial diagnosis of depression and anxiety, and proposed that Mr. Kulling begin a course of treatment involving at least three visits per week.
Upon returning home from his session with Dr. Breiner on January 17, 1998, Mr. Kulling remained distant and generally non-responsive. However, according to Mrs. Kulling, her husband stated that he was going to quit his new job the following Monday, that he “knew he’d been discriminated against at Grinders,” and that “he knew he wasn’t coping with” his recent discharge. (Defendants’ Motion, Ex. 6, Kulling Dep. at 176.) The following morning, Mrs. Kulling was in the bathroom when she heard a shot. She called the police, who discovered that Mr. Kulling had shot himself with a rifle in the basement of his home.
Plaintiffs have produced an affidavit from Dr. Breiner, who opines, based on his single session with Mr. Kulling on January 17, 1998, that Mr. Kulling’s suicide was attributable to the loss of his job with Defendant, and not other factors such as marital difficulties. Specifically, Dr. Breiner states:
It is my opinion based on my examination of Mr. Kulling that he had a significant psychological illness, as expressed by the serious depression, impaired judgment and final act of suicide. The loss of his job at Grinders For Industry — Toyoda Machinery was the cause of the serious depression and psychotic break with reality which directly led to his suicide. It is my conclusion that the loss of his job was the cause of Mr. Kulling’s death by suicide and the emotional injuries resulting in his death.
While Mr. Kulling did not show any symptoms of psychosis when I examined him, his death by suicide was caused by this serious depression which resulted in a psychotic break with reality. The serious depression and psychotic breakwith reality caused by Mr. Kulling’s termination from employment by Grinders For Industry — Toyoda Machinery led to an uncontrollable impose of irrational rage (turned against himself) by Mr. Kulling causing him to commit death by suicide.
(Plaintiffs’ Response, Ex. H, Breiner Aff. at ¶¶ 9-10.) Similarly, Plaintiffs cite the deposition testimony of their psychiatric expert, Dr. Gerald A. Shiener, that Mr. Kulling suffered from a mental illness caused by his discharge by Defendants, that this mental illness resulted in his death, and that this illness led to an irresistible impulse to end his life. (See Plaintiffs’ Response, Ex. I, Shiener Dep. at 148-49.)
Defendants advance three grounds for challenging this conclusion. First, they note that Mr. Kulling was able to secure new employment almost immediately after his discharge by Defendants. Next, they point to the passage of time, perhaps a month or more, between Mr. Kulling’s termination and the first report of symptoms of depression. In fact, Mr. Kulling did not seek treatment until' early January óf 1998, almost two months after his discharge.
Finally, Defendants have produced medical records indicating that Mr. Kulling suffered from an episode of depression in 1988, following Defendants’ assignment of him to a new position in the sales department. The notes of his treating psychiatrist at the time, Dr. Luis Pomodoro, suggest that Mr. Kulling was experiencing difficulties adjusting to changes in work assignments. (See Defendants’ Motion, Exs. 7, 9, 10.) Based on this earlier episode, Defendants contend that Mr. Kull-ing’s problems in late 1997 and early 1998 were manifestations of his longstanding depression, and that his more recent difficulties, like his earlier ones, were attributable to his inability to adapt to new situations and changes in job conditions. In support of this contention, Defendants have produced an expert psychiatric report from Dr. Elissa P. Benedek, opining that Mr. Kulling “suffered from a pre-existing mental condition/illness beginning in 1988,” and that this longstanding condition was exacerbated by his “difficulty in accommodating to his new employment.” (Defendants’ Motion, Ex. 31, Benedek Report at 2.)
D. Procedural Background
Plaintiffs commenced this action in this Court on September 3, 1999. Plaintiffs’ first amended complaint, filed on September 13, 1999, includes two counts: (1) a claim under the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., alleging that Defendants unlawfully discharged Plaintiffs on account of their age; and (2) a loss of consortium claim, brought by Plaintiff Lá-veme Kulling only. As noted earlier, Plaintiff Kulling also seeks additional damages under Count I for the wrongful death of her husband, Carl Kulling.
By motion filed on May 19, 2000, Defendants now seek summary judgment in their favor on each of Plaintiffs’ two claims. First, Defendants argue that Plaintiffs cannot establish a prima facie case of age discrimination, where the challenged employment decisions were solely the product of a legitimate and economically motivated reduction in force. Next, even if Plaintiffs’ ADEA claims are permitted to go forward, Defendants assert that Plaintiff Laverne Kulling is not entitled to wrongful death damages, because she has failed to produce evidence that her late husband’s termination caused a mental illness leading to the irresistible impulse to commit suicide. Finally, Defendants argue that Plaintiff Kulling’s separate loss-of-consortium claim must fail, because it is subsumed either within her underlying ADEA claim or her derivative claim for wrongful death damages.
Plaintiffs responded to these arguments in a brief filed ’ on June 13, 2000, and Defendants in turn filed a reply brief on June 28, 2000 in further support of their motion.
9
On July 27, 2000, counsel for the
III. ANALYSIS
A. The Standards Governing Defendants’ Motion
In their present motion, Defendants seeks summary judgment in their favor pursuant to Fed.R.Civ P. 56. Under this Rule, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c).
Three 1986 Supreme Court
case
s—Mat
sushita Electrical Industrial Co. v. Zenith Radio Corp.,
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof.
Celotex,
After reviewing the above trilogy of cases, the Sixth Circuit adopted a series of principles governing motions for summary judgment. These principles include:
* The movant must meet the initial burden of showing “the absence of a genuine issue of material fact” as to an essential element of the non-movant’s case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.
* The respondent cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must “present affirmative evidence in order to defeat a properly supported motion for summary judgment.”
* The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.
* The trial court has more discretion than in the “old era” in evaluating the respondent’s evidence. The respondent must “do more than simply show that there is some metaphysical doubt as to the material facts.” Further, “[wjhere the record taken as a whole could not lead a rational trier of fact to find” for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent’s claim is plausible.
B. Plaintiffs’ Age Discrimination Claims Under the ADEA
Defendants’ principal argument in support of their motion is that Plaintiffs were discharged pursuant to a legitimate, economically1 driven1 ' reduction-in-force (“RIF”) within Defendants’ Grinding Machine Division (“GMD”), If so, it follows that Plaintiffs cannot show that their terminations were motivated by impermissible considerations of age. ■ In response, Plaintiffs question whether Defendants carried out a true RIF in their Wixom, Michigan facility, and they further contend that the evidentiary record discloses the age-based reasons for the challenged employment decisions. Although the question is a close one, the Court is inclined to view Defendants’ actions as consistent 'with a true RIF. Nevertheless, regardless of whether Plaintiffs must meet the burden imposed in RIF cases, or whether they must instead establish a more traditional prima facie case of age discrimination, the Court is satisfied that they have met their burden, at least to the extent necessary to survive a motion for summary judgment.
1. Defendants’ Reduction-In-Force Defense
In their motion, Defendants assert that their decisions to discharge Plaintiffs were not motivated by considerations of age, but by a legitimate business decision to reduce their GMD workforce as a result of economic losses within that division. As noted earlier, Plaintiffs have produced evidence that, in their view, casts doubt upon the “economic losses” cited by Defendants as motivating the RIF at issue. Leaving this aside for the moment, however, Plaintiffs’ principal contention is that Defendants did not undertake a RIF at all, but simply replaced Plaintiffs with other, younger employees. The Court finds that this contention cannot be squared with the controlling Sixth Circuit precedents on this issue.
The parties agree that the Sixth Circuit’s decision in
Barnes v. GenCorp Inc.,
We do not'believe the same rationale [ie., that an inference of discrimination arises from the prima facie case] applies to a work force reduction where the plaintiff has done no more than show the elements of the McDonnell Douglas formula that relate to his or her situation: (1) that he or she was age forty or over; (2) that he or she was qualified to perform the job; and (3) that he or she was discharged. When • work force reductions by the employer are a factor in the decision, “the most common legitimate reasons” for the discharge are the work force reductions. By showing the other elements of a McDonnell Douglas case, a plaintiff has hot presented any evidence indicating that the work force reductions are not the reasons for the discharge and therefore does not make out a prima facie,case absent additional direct, 'circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.
Our conclusion would not change even if a plaintiff additionally demonstrated that younger persons were retained inother jobs which the plaintiff was qualified to perform. A different result would allow every person age 40-and-over to establish a prima facie case of age discrimination if he or she was discharged as part of a work force reduction.
Barnes, 896 F.2d at Í464-65 (citations and footnote omitted).
The Court then provided some guidance in determining whether a case involves a true RIF, and thus requires a modified •prima facie showing:
It is important to clarify what constitutes a true work force reduction case. A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated' as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to' perform the plaintiffs duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiffs duties.
Returning to the present case, it appears at first glance that'Defendants’ discharges of Plaintiffs had all of the characteristics of a true RIF. Plaintiffs concede that no new employees were hired to fill their former positions. Rather, the evidence unquestionably shows that the tasks previously performed by Plaintiffs were assumed by existing employees — although, to be sure, the record is a great deal less clear as to which duties were assumed by which employees. Consequently, if it N enough, under Brocklehurst, that Defendants’ actions had the “net effect” of reducing the number of positions within the GMD workforce, then the terminations of Plaintiffs surely accomplished this result:
Yet, as Plaintiffs point out,
Barnes
holds that an employee is replaced, and no true RIF occurs, when “another employee is hired or
reassigned
” to perform his duties.
Barnes,
This case lies somewhere between the rules stated in
Barnes
and
Brocklehurst.
Defendants assert that the situation here lies squarely within the holding in
Barnes
because, according to the deposition testimony of Defendants’ management, Plaintiffs’ former job responsibilities were “redistributed among other existing employees already performing related work.”
Barnes,
Under
Brocklehurst,
however, such reassignments are consistent with a true workforce reduction, so long as Defendants actually eliminated positions and reduced costs. Plaintiffs have failed to produce any evidence to challenge Defendants’ assertion that a number of positions were eliminated in the alleged RIF that produced Plaintiffs’ discharges. Arguably, though,
Brocklehurst
can be read as carving out only a limited exception to
Barnes
’ rule of “reassignment,” under which an employer may reassign an employee to a vacated but “essential” position without forfeiting its appeal to an economically motivated RIF.
See Brockle-hurst,
In short, while there are some indications of a genuine workforce reduction in this case, other evidence points in the opposite direction. In any event, the Court finds it unnecessary to resolve this issue because, under either a RIF-based or traditional
McDonnell Douglas
analysis, Plaintiffs have identified issues of fact that preclude an award of summary judgment to Defendants. Assuming, for present purposes, that this case involves a true RIF,
Barnes
requires that Plaintiffs’
pri-ma facie
case must include, in addition to the standard elements (none of which are contested here), “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out [Plaintiffs] for discharge for impermissible reasons.”
Barnes,
First, as discussed earlier, each Plaintiff has pointed to remarks allegedly made by Defendants’ management in connection with his discharge that suggest an unlawful age-based reason for this action. When they inquired about their terminations, Plaintiffs allegedly were told that they were “the first of a number of retirement age employees being let go,” that there was a “corporate plan ... to bring ... the younger employees up the ladder,” and that “the company was downsizing, and they were letting go of the older, more senior people.” Although Defendants deny that these statements were made, the Court is obliged to assume otherwise for purposes of the present motion.
Next, Plaintiffs have produced statistical evidence of an age disparity in the workers selected by Defendants for discharge. Out of the seven salaried employees who were discharged, all were over the age of 50. Before the alleged RIF, 69 salaried GMD employees worked at the Wixom facility; 26 of these were age 50 or older, while 43 were less than 50 years old. All seven employees selected in Defendants’ alleged RIF were in the former, over-50 category, including all three Plaintiffs. According to Plaintiffs’ statistical expert, Nitin V. Paranjpe, Ph.D., there is only -a 0.1% chance that such a disparity would occur if age were not considered in Defendants’ termination decisions.
(See
Plaintiffs’ Response, Ex. E, Paranjpe Report at 4.) Plaintiffs’ expert also points to the significant difference in the average age of those employees who were discharged (56.1) and the average age of those who were retained (44.9). Defendants complain that the small sample size of Plaintiffs’ data renders the conclusions of their statistical expert inherently suspect.
See Brocklehurst,
Finally, Plaintiffs have produced circumstantial evidence that casts at least some doubt on Defendants’ claim that the challenged employment decisions were not motivated by considerations of age, but instead by economics and business judgment as to which positions were the most ex
The Court need not decide whether any of the above forms of evidence, standing alone, would be sufficient to meet Plaintiffs’ burden under Barnes. The Court readily concludes that the record, viewed as a whole, would permit the inference that Defendants selected Plaintiffs for discharge based on their age. Viewing this as a RIF case, the Court finds that Plaintiffs’ evidence suffices to establish a prima facie case of age discrimination, and to defeat Defendants’ motion for summary judgment.
2. Plaintiffs’ Claims as Viewed Under the McDonnell Douglas Standard
Alternatively, accepting Plaintiffs’ position that this case does not involve a true RIF, this Court’s inquiry then is governed by the traditional McDonnell Douglas framework. Under this standard, the Court concludes, for many of the same reasons set forth above, that Plaintiffs’ age discrimination claims survive summary judgment.
Assuming, for present purposes, that Plaintiffs were replaced and not terminated as part of a true RIF, Plaintiffs first must establish a
prima facie
case of age discrimination by showing (1) that they were members of the protected over-40 class, (2) that they were subjected to adverse employment actions, (3) that they were qualified for their positions, and (4) that they were replaced by younger persons.
See Godfredson v. Hess & Clark, Inc.,
Plaintiffs having established a
prima fa-cie
case, Defendants then bear the burden of articulating legitimate, nondiseriminato-ry reasons for the challenged employment decisions.
Brocklehurst,
This leaves Plaintiffs with the burden of showing that the reasons advanced by Defendants were not the true bases for their decisions, but that Defendants instead were motivated by unlawful considerations of age.
See Tinker,
More generally, the Court already has surveyed Plaintiffs’ direct, circumstantial, and statistical evidence, and has determined that a reasonable factfinder could conclude, based on the totality of this evidence, that Defendants discriminated on the basis of age in selecting Plaintiffs for discharge. In light of this evidence, the Court finds that Plaintiffs’ age discrimination claims survive Defendants’ motion for summary judgment.
C. Plaintiff Kulling’s Claim for Wrongful Death Damages Under the ADEA
As part of the age discrimination claim brought on behalf of her late husband Carl, Plaintiff Laverne Kulling seeks additional relief under Michigan’s wrongful death statute, Mich.Comp.Laws § 600.2922. This statute provides, in relevant part:
Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, .the person who or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.
Mich.Comp.Laws § 600.2922(1). This statute further delineates the types of damages that may be awarded in a wrongful death action:
In every action under this section the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased.
Mich.Comp.Laws § 600.2922(6).
In their present motion for summary judgment, Defendants contend that Plaintiff Laverne Kulling cannot establish the requisite causal link between her husband’s allegedly wrongful discharge
12
and his subsequent death by suicide that would entitle her to collect wrongful death damages. In support of this argument, Defendants rely principally on
Jamison v. Storer Broadcasting Co.,
Before the Court may reach this substantive question, however, it first must determine the source of the law, state or federal, that governs Plaintiff Kulling’s claim for damages.
13
Jamison
is not helpful on this question, as that case involved claims under Michigan and not federal law.
Jamison,
The Court begins its journey upon well-traveled ground. Plainly, if Carl Kulling had not passed away, the relief he could have recovered for a violation of the ADEA would have been determined by resort to the language of the federal statute itself, along with the decisional law construing its provisions. As the Supreme Court has explained, “it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it.”
Transamerica Mortgage Advisors, Inc. v. Lewis,
Turning, then, to the remedial provisions of the ADEA, the Sixth Circuit has aptly noted the “strangely convoluted piece of drafting” by which this statute defines the nature of the available relief.
See Wheeler v. McKinley Enterprises,
The provisions of the ADEA, it is specified in 29 U.S.C. § 626(b), are to be “enforced in accordance with the powers, remedies, and procedures provided” in designated sections of the Fair Labor Standards Act (“FLSA”) — and “[a]mounts owing to a person as a result of a violation of [the ADEA] shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of [FLSA provisions codified at 29 U.S.C. §§ 216 and 217].” The FLSA provides that any employer who violates the minimum wage or overtime provisions of that statute shall be liable not only in the amount of the unpaid minimum wages or unpaid overtime compensation, but also “in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). And under the ADEA, as distinguished from the FLSA, such liquidated damages are “only” payable “in cases of willful violations ...” 29 U.S.C. § 626(b). (Emphasis supplied.)
Wheeler,
Upon parsing this remedial language of the ADEA in light of its cross-references to portions of the FLSA, the Sixth Circuit concluded that the ADEA establishes a two-tiered scheme of relief:
... [A] person who has suffered a wage loss as a result of having been discharged in violation of the ADEA is entitled to judgment for his back pay (the first tier of damages), and is entitled to judgment for liquidated damages in an equal amount (the- second tier of damages) if — but only if — the ADEA violation was “willful.”
Wheeler,
However, the ADEA’s remedial scheme forecloses many of the forms of damages sought by Plaintiff Kulling in this case under the Michigan wrongful death act. For example, the ADEA does not authorize awards of compensatory damages for pain and suffering or emotional distress.
See Commissioner of Internal Revenue v. Schleier,
Like the pre-1991 version of Title VII, the ADEA provides no compensation “for any of the traditional harmsassociated with personal injury.” Monetary remedies under the ADEA are limited to back wages, which are clearly of an “economic character,” and liquidated damages, which we have already noted serve no compensatory function.
Schleier,
Plainly, then, if Carl Kulling were still alive, he could not recover many of the sorts of damages sought by Laverne Kull-ing under Michigan’s wrongful death act. The question becomes whether Mr. Kull-ing’s death altered the scope of the relief awardable for Defendants’ alleged violation of the ADEA. In resolving this issue, the Court begins by noting an important distinction between the ADEA and the seminal federal civil rights statute, 42 U.S.C. § 1983. Under this latter enactment, the courts are expressly authorized to look to state law for certain purposes:
The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of [§ 1983, among other statutes] for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....
42 U.S.C. § 1988(a).
In
Robertson v. Wegmann,
The Supreme Court then considered whether Louisiana’s survivorship statute was “inconsistent” with federal law, where the application of this state law would result in the abatement of the action before the Court.
17
While recognizing the “broad
It is true that § 1983 provides “a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation.” That a federal remedy should be available, however, does not mean that a § 1983 plaintiff (or his representative) must be allowed to continue an action in disregard of the state law to which § 1998 refers us. A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. If success of the § 1983 action were the only benchmark, there would be. no reason at all to look to state law, for the appropriate rule would then always be the one favoring the plaintiff, and its source would be essentially irrelevant. But § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.
Two distinctions may be drawn between
Robertson
and this case. Oh one hand,
Robertson
expressly does not reach a case where, as claimed here, the defendant’s violation of federal law allegedly contributed to the plaintiffs death.
Cf. Carlson v. Green,
This latter distinction presumably accounts for the uniform consensus among the courts that federal common law governs the survival of ADEA claims.
See, e.g., Smith v. Department of Human Servs.,
To determine whether an action under the ADEA is penal or remedial in nature, the courts have applied a three-factor test adopted by the Sixth Circuit in
Murphy v. Household Finance Corp.,
Athough Plaintiff Kulling concedes that federal common law, and not Michigan’s survival statute, determines whether her ADEA claim survives her husband’s death, she nonetheless invites the Court to look to Michigan’s wrongful death act when determining the relief available to her under this claim. This argument, however, faces a number of obstacles which the Court finds insurmountable, at least in the aggregate. First, neither Plaintiff nor this Court has uncovered a single decision that looks beyond the four corners of the ADEA to determine the relief recoverable for a violation of this federal statute. To the contrary, it is at least implicit in the above-cited decisions addressing the survival of ADEA claims that the ADEA itself determines the sorts of relief available for violations of federal age discrimination law, and that this remains true after the death of a party. Were it otherwise, the survival of a federal ADEA claim would turn upon the types of damages
available
— i.e., remedial versus punitive — under a given state’s wrongful death act. Yet, the courts that have considered the survival of ADEA claims have confined their inquiries to the remedies provided by the federal statute itself, and not by any state’s wrongful death act.
See, e.g., Smith,
Next, even if the ADEA contained a provision similar to § 1988 which authorized resort to state law under certain circumstances, it is doubtful whether the Court could stray beyond the four corners of the ADEA on the issue of relief. Even under § 1988, federal law must first be deemed “deficient” in some way before a court may turn to other sources. As discussed earlier, however, the ADEA is by no means “deficient” in its remedial provisions; it merely limits recovery to back pay, reinstatement or front pay, and liquidated damages, while precluding awards of traditional tort-based compensatory damages. The Court declines to view the ADEA as “silent” on other forms of relief, thereby permitting resort to other sources of law, particularly where, as noted earlier, Congress specifically amended Title VII to permit the recovery of compensatory damages, while notably making no such change to the ADEA.
Moreover, the Supreme Court’s § 1983 jurisprudence suggests that the relief available under a federal statute is uniquely a matter of federal law, even where § 1988 invites the courts to look to the law of the forum state. The Court has repeatedly observed that neither § 1983 nor its legislative history provides specific guidance as to the sorts of damages recoverable for a violation of federally secured rights.
See, e.g., Smith v. Wade,
Upon reviewing these and other Supreme Court decisions in a § 1983 suit involving a murder of an inmate, Mark Berry, by his fellow prisoners, the Tenth Circuit declined to determine the scope and extent of the available relief by reference to the wrongful death statute of the forum state, Oklahoma.
See Berry v. City of Muskogee,
The difficult question we face here is whether damages in a § 1983 action in which death occurs are limited to those recoverable under the Oklahoma survival action alone, or to those recoverable by such a survival action and an Oklahoma wrongful death suit, or whether damages are determined by some federal standard either as a survival or wrongful death-type action not defined or limited by state law.
In the case before us the recovery permitted under the Oklahoma wrongful death act duplicates, in many respects, the recovery Mark Berry might have obtained had he lived to sue for his injuries. But, as we have noted, the act permits recovery of the loss of consortium and grief of the surviving spouse, children, and parents, which Mark Berry could not have recovered had he lived. In considering whether the purposes of § 1983 are satisfied by adoption of state survival and wrongful death actions, we must consider that different states will define them differently, thus requiring individual analyses of each state’s law. We might have to find that a state’s law works satisfactorily in some instances, as when there are surviving dependents, but not in other eases, as when there is no one with a right to sue.
Weighing these concerns, and considering the Supreme Court’s approach in Smith [and other cases], we conclude that supplementing a state survival action with a state wrongful death action does not satisfy the criteria of § 1988 for borrowing state law. The laws are not suitable to carry out the full effects intended for § 1983 cases ending in death of the victim; they are deficient in some respects to punish the offenses. Application of state law, at least in some instances, will be inconsistent with the predominance of the federal interest.
We therefore conclude, as did the Sixth Circuit in [Jaco v. Bloechle,739 F.2d 239 (6th Cir.1984) ], that the federal courts must fashion a federal remedy to be applied to § 1983 death cases. The remedy should be a survival action, brought by the" estate of the deceased victim, in accord with § 1983’s express statement that the liability is “to the party injured.” It must make available to plaintiffs sufficient damages to serve the deterrent function central to the purpose of § 1983.
Given the rulings of the Supreme Court and the appellate courts in the context of
Moreover, to incorporate a § 1988 analysis into the ADEA, by looking in each case to the law of the forum state, would pose precisely the risk that the Tenth Circuit found unacceptable in Berry: namely, that each state’s law would permit a different recovery under the same or similar facts, thereby undermining the uniformity of federal age discrimination law. While Michigan law might produce a more desirable result for the plaintiff here, such cases as Robertson, Berry, and Jaco reveal that state survival and wrongful death statutes do not always favor plaintiffs. And, as explained in Robertson, there is no principled basis for adopting state law only when it favors the plaintiff or supplements the remedies otherwise available under the ADEA. Accordingly, the Court declines to borrow from Michigan’s wrongful death statute in determining the relief recoverable by Plaintiff Kulling under the ADEA. Rather, the Court concludes that the scope and extent of this relief must be determined solely by resort to the ADEA itself.
Nevertheless, Plaintiff Kulling suggests that the Court can remain within the four corners of the ADEA, while still awarding the wrongful death damages she seeks. In particular, Mrs. Kulling points to the ADEA’s language authorizing the courts to “grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter.” 29 U.S.C. § 626(b). This clause, however, is not nearly so open-ended as it might first appear, when viewed in the context of the language that follows and qualifies it. As the Seventh Circuit explained, in a case in which the plaintiff, Merwin Moskowitz, sought to recover consequential damages beyond back pay and benefits:
The age discrimination law authorizes the courts to grant “such legal or equitable relief as may be appropriate to effectuate the purposes” of the law. 29 U.S.C. § 626(b). Moskowitz is not seeking equitable relief, such as reinstatement, or “front pay” in lieu of reinstatement when reinstatement is infeasible. He is seeking damages, the standard “legal” (as distinct from equitable) remedy. He claims that the defendants caused him to lose income from other sources. The statutory language that we just quoted is broad enough to encompass a claim for such damages — but only when the language is taken out of its context. For immediately after it the statute says that “legal and equitable relief ... includ[es] without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.” Themysterious expression — mysterious in a statute concerned with age discrimination rather than with subminimum wages or excessive hours — “amounts deemed to be unpaid minimum wages or unpaid overtime compensation” reflects the fact that the age discrimination law incorporates the remedies of the Fair Labor Standards Act. Specifically, “amounts owing to a person as a result of a violation of [the age discrimination law] shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of’ the remedial provisions of the FLSA. 29 U.S.C. § 626(b)., The only “legal” relief specified in the “inelud[es] without limitation” provision of section 626(b) is an award of “amounts owing to a person as a result of a violation,” and the natural way to take this language is as referring to amounts such as wages or benefits that the employer should have given the employee but did not because of the latter’s age. That would exclude the consequential damages, sought here. Purdue [University, the plaintiffs former employer] does not “owe” Moskowitz any amount of post-retirement income. The claim is rather that Purdue has interfered with his receipt of such income from other sources.
Well, but what about “without limitation”? Although Moskowitz is not asking for the statutorily specified legal relief, the statute seems not to be limited to that form of legal relief. But we think it is. If Congress wanted to grant age discrimination plaintiffs full rights to common law damages, why did it use as its remedial template the Fair Labor Standards Act? The phrase “without limitation” invites courts to be imaginative in the devising of equitable remedies; the invention of front pay is an example. It does not invite the courts to undo the limitations that the Fair. Labor Standards Act places on nonequi-table relief. If we were to break out of the FLSA framework, as invited, by Moskowitz to do, we could not reasonably stop with post-retirement income. Like other forms of tortious conduct, age discrimination can cause psychological distress but the cases hold ... that the courts are not authorized to grant such “legal relief’ to age discrimination plaintiffs. These cases show that “without limitation” is not to be taken literally when the issue is whether to award legal relief that is novel by the standards of the Fair Labor Standards Act. We do not see how these cases can be distinguished from our case.
Moskowitz, supra,
This reasoning applies with full force here, where Plaintiff Kulling seeks legal relief beyond back pay and lost benefits, such as compensation for her husband’s pain and suffering, for loss .of financial support, and for loss of consortium. To be sure, as suggested earlier in the Court’s discussion of Robertson, an argument can be made for a greater recovery here than in other cases, where Plaintiff alleges that Defendants’ violation of the ADEA was a contributing factor in Mr. Kulling’s death. Under these circumstances, wrongful death damages seemingly are “appropriate to effectuate the purposes” of the ADEA, 29 U.S.C. § 626(b), as such relief would better ensure that Defendants bear the full cost of the harms they allegedly inflicted.
Yet, the additional relief sought by Mrs.. Kulling is altogether different in kind, and not merely in degree, from that typically awardable under the ADEA. In
Schleier, supra,
515 U.S, at 336,
To summarize, having reviewed the limited case law on point, and having extensively surveyed the analogous precedents arising under other federal statutes such as 42 U.S.C. § 1983, the Court has reached the following conclusions. First, as a matter of federal common law, Carl Kulling’s claim under the ADEA survives his death, except to the extent that' it seeks an award of “liquidated damages” as defined by the statute. Thus, Plaintiff Laverne Kulling may pursue this ADEA claim as the personal representative of Mr. Kulling’s estate. Next, the relief recoverable by Mrs. Kulling under the ADEA is limited to that permitted under the remedial provisions of the federal statute itself, and may not be expanded by resort to Michigan’s wrongful death statute or through the creation of a federal common law of wrongful death damages. Accordingly, Plaintiffs federal ADEA claim provides no basis for awarding the compensatory, pain and suffering, or loss of consortium damages to which Mrs. Kulling otherwise might be entitled under the Michigan wrongful death statute.
D. Plaintiffs State-Law Claim for Wrongful Death Damages
The foregoing analysis, however, is not quite the end of the matter. As Plaintiffs point out in their supplemental brief, there is a distinction between the relief sought by Mrs. Kulling on behalf of her late husband on account of-harms he suffered up until his death, and the relief sought by Mrs. Kulling on behalf of her husband’s beneficiaries to compensate for harms they have suffered through the loss of Mr. Kull-ing. Thus, while the ADEA might “occupy the field” as to the former sort of relief, at least where Plaintiffs have not asserted parallel state-law claims of age discrimination, it does not necessarily follow that the ADEA preempts or displaces awards of the latter form of relief under a state statute. Stated differently, the same alleged wrong — namely, a violation of federal age discrimination law — might trigger recoveries under both the ADEA and a state statute. Although Plaintiffs decline to characterize this latter sort of claim as state or federal in nature, they maintain that this theory of recovery stands apart from the ADEA, and thus is not subject to the remedial limitations found in that statute. 23
The Court agrees. Initially, Plaintiffs correctly assert that the ADEA does not wholly preempt any and all state-law causes of action that might arise from an act of age discrimination. For example, a plaintiff may assert both federal- and state-law claims of age discrimination arising from a single instance of allegedly unlawful conduct.
See Moody v. Pepsi-Cola Metro. Bottling Co.,
More specifically, in Jaco, supra, the Sixth Circuit recognized precisely the distinction Plaintiffs have drawn here between a federal claim brought on behalf of a decedent to vindicate his federally protected rights and a wrongful death claim brought to redress injuries suffered by the heirs of the decedent. . In particular, in that case, the Court carefully distinguished between federal civil rights claim brought by a mother on behalf of her son, who was shot and killed by police officers, and a wrongful death claim brought on behalf of the decedent’s heirs. The Court observed that the former claim was governed by § 1983, with its incorporation of a state survival statute through § 1988, while the latter claim arose solely under the state’s wrongful death statute:
It is perhaps appropriate at this juncture to distinguish between survival actions and wrongful death actions. It is conceded by most courts that they are distinct causes of action. A survival claim is predicated upon the decedent’s claim for damages sustained during his lifetime. On the other hand, a wrongful death action creates a new and separate claim or cause of action for the damages sustained by the decedent’s estate as a result of his death. The distinction as it arises in conjunction with alleged § 1983 violations is apparent. The § 1983 cause of action, by virtue of the explicit language of the section itself, is a personal action cognizable only by the party whose civil rights had been violated; while, on the other hand, the wrongful death action is a cause of action that inures to the benefit of decedent’s estate, as a result of, not the personal injury suffered by the decedent, but rather, injuries to his estate cause by his wrongful death.... Patently, Ohio’s wrongful death statute creates a cause of action in tort in favor of the decedent’s heirs for damages resulted from losses of prospective advantages which have been pretermitted by the wrongful death of the victim. Certainly, in a sense, the heirs are injured parties as a result of decedent’s premature demise[;] however, to arbitrarily conclude that their injuries resulted from an infringement of their civil rights would be sheer obfuscation of the issue. Simply stated, the wrongful death of the decedent resulting from a tort, which gives rise to the cause of action for the benefit of his heirs, is not equivalent to decedent’s personal § 1983 claim....
Jaco,
As is clear from the Court’s discussion in
Jaco,
such a wrongful death action brought for the benefit of the decedent’s heirs is a
state-law
cause of action, even though it might be triggered by a violation of federally protected rights. Indeed, the Sixth Circuit expressly so held, stating that “the claim of Jaco’s heirs under the wrongful death enactment is a cause of action separate from the civil rights claim and should have been treated as a
state
claim subject to the trial court’s pendent jurisdiction.”
Jaco,
Because this is so, Mrs. Kulling’s wrongful death claim is barred by the “Severance Agreement and General Release” executed by Mr. Kulling on November 10, 1997, three days after his discharge. This agreement provided that Mr. Kulling would be given severance pay of $17,138.70 and certain other benefits, and further stated:
In consideration of the aforementioned payments and other consideration given by Company to Employee, Employee, on behalf of Employee, Employee’s heirs, personal and legal representatives, successors and assigns, hereby irrevocably and unconditionally releases, quits[,] forever discharges and covenants not to sue Company ... from any and all complaints, claims, charges, liabilities, damages, obligations, promises, agreements, grievances, suits, costs, debts, attorney’s fees, and other legal expenses and causes of action of any nature whatsoever, whether known or unknown at this time, based upon contract, tort or otherwise, under the laws of the United States, including but not limited to any claims relating to the [ADEA] ... or any other claims under any federal, state or local statu[t]e, regulation, rule, ordinance, collective bargaining agreement, common law or other law arising out of or relating to Employee’s employment by and termination of his employment from Company which Employee has, had or may have ... arising from or relating to occurrences or non-occurrences through the effective date of this Agreement ... or involving the continuing effects of any acts or omissions which occurred prior to the date of this agreement.
(Defendants’ Motion, Ex. 5, Kulling Severance Agreement at 2-3.)
On its face, this provision operates to release Mrs. Kulling’s wrongful death action against Defendants. In exchange for severance pay and other benefits, Mr. Kulling promised, not only on his own behalf but on behalf of his “heirs, personal and legal representatives, successors and assigns,” not to bring suit against Defendants under state or federal law “arising out of or relating to” the termination of his employment. The Sixth Circuit has held that, under Michigan law, such a settlement agreement between the plaintiffs decedent and the defendant precludes the plaintiff, as personal representative, from pursuing a state-law cause of action for wrongful death.
See Kane v. Rohrbacher,
Plaintiff Kulling, however, challenges both the legal and factual bases for this result. First, noting the “derivative” nature of her wrongful death claim, Mrs. Kulling argues that Defendants’ purported failure to satisfy the terms of the OWBPA, 29 U.S.C. § 626(f), invalidates Mr. Kulling’s release, not just of his ADEA claim, but also of any claims which are “derivative” of this claim. Yet, as Plaintiffs recognize elsewhere in their own supplemental brief, an action under Michigan’s wrongful death act is “derivative” only in the narrow sense that “the personal representative of the deceased stands in his shoes and is required to show that the deceased could have maintained the action if death had not ensued.”
Maiuri v. Sinacola Constr. Co.,
In essence, Plaintiff seeks to have it both ways, arguing that the Michigan act confers separate, substantive rights upon the heirs of Mr. Kulling that are not displaced by the ADEA’s remedial scheme, yet also arguing that this separate wrong-
Finally, Plaintiff argues that the release signed by Mr. Kulling is ineffective to waive a wrongful death claim, as this claim did not yet exist when the release was executed. This contention, however, cannot be squared with the ruling in Kane, supra, where the Sixth Circuit held that a release signed by the decedent before his death operated to bar a subsequent wrongful death suit brought by his personal representative. Nor, contrary to Plaintiffs contention, can it be said that Mr. Kulling was wholly unaware of a possible violation of his rights when he signed the severance agreement. In fact, Defendants had already committed their alleged wrongdoing when they terminated Mr. Kulling; only the extent of his injuries remained unknown. Indeed, before Mr. Kulling signed the severance agreement, Mrs. Kulling, according to her own testimony, had already met with Defendant’s vice president and general manager, Gary Blanchard, who allegedly told her that “the company was downsizing, and they were letting go of the older, more senior people.” (Plaintiffs’ Response, Ex. A, Kulling Dep. at 108.)
Thus, the release signed by Mr. Kulling is not invalid for waiving prospective claims. Neither has Plaintiff identified any other respect in which the release was not knowingly or voluntarily given. Consequently, the Court concludes that, by virtue of the “Severance Agreement and General Release” signed by her late husband, Plaintiff Kulling is precluded from recovering damages under Michigan’s wrongful death statute. Instead, Mrs. Kulling’s recovery in this case is limited to the relief her husband could have obtained under the ADEA if not for his death, minus any “punitive” recovery of liquidated damages Mr. Kulling might have achieved in the event that Defendants are determined to be “willful” violators of the federal statute. 25
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendants’ May 19, 2000 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Consistent with this Opinion and Order, Defendants’ motion is granted to the extent that it seeks the dismissal of Plaintiff Láveme Kulling’s separate claim for loss of consortium, and to the extent that it seeks to exclude any recovery by Plaintiff Kulling under Michigan’s wrongful death statute, but is in all other respects denied.
IT IS FURTHER ORDERED that the following motions are DENIED AS MOOT: (1) Defendants’ May 19, 2000 Motion for Severance and/or for Bifurcation; (2) Defendants’ June 16, 2000 Motion for Leave to File Notice of Non-Party Fault; (3) Defendants’ June 28, 2000 Motion for Psychiatric Examination of Plaintiff Lá-veme Kulling; (4) Plaintiffs’ July 7, 2000 Motion to Strike Portions of Defendants’ Reply Brief; and (5) Plaintiffs’ July 24, 2000 Motion to Quash Deposition of Dr. Sander J. Breiner. 26
Notes
. The parties also have recently filed a number of other motions, all of which are addressed in this Opinion and Order.
. This reply brief has itself spawned an additional dispute among the parties. Specifically, on July 7, 2000, Plaintiffs filed a motion to strike portions of Defendants’ reply brief, contending that Defendants improperly raised new issues in their reply that had not been addressed in their initial'motion and brief in support. Plaintiffs' motion is addressed below.
.For convenience, employees Beal, Scheib, and Carl Kulling will be collectively referred to as "Plaintiffs” in the remainder of this Opinion.
. Plaintiffs contend that these agreements are ineffective to release their ADEA claims, because Defendants failed to comply with the terms of the Older Workers Benefit Protection Act, ("OWBPA”), 29 U.S.C. § 626(f)(1), in procuring these releases.
See generally Oubre v. Entergy Operations, Inc., 522
U.S. 422,
. Another salaried employee, Gayle Sich, was terminated on November 17, 1997. However, this discharge was not part of the RIF, but was due to an alleged attitude problem. In addition, several hourly employees were discharged, but these determinations apparently were made strictly on the basis of seniority under the terms of a collective bargaining agreement.
. The Court further notes that the individuals named in these discovery responses are not the same employees identified in the testimony of Paul Lefief and Edward McClymont as having assumed Plaintiffs’ duties upon their discharges.
. Plaintiffs also point to Gary Blanchard’s deposition testimony that he met with Defendants' attorneys in connection with the planned RIF to "explain! 1 some of the things we were going to do, and one of the issues I had was with age.” (Plaintiffs’ Response, Ex. J, Blanchard Dep. at 46.) In addition, Plaintiffs cite the deposition of another of Defendants' employees, Shawn Schultz, who testified that she and her co-workers joked that Defendants had targeted the "Over 50 Club” for termination. (Plaintiffs' Response, Ex. F, Schultz Dep. at 47.)
. This information is derived from Dr. Bremer's medical records, as transcribed by Defendants’ counsel following a discussion with Dr. Breiner. (See Defendants' Motion, Ex. 16.)
. By motion filed oh July 7, 2000, Plaintiffs complain that Defendants raised new issues
. Although the
Carpenter
Court rejected the statement in question as too “isolated and ambiguous” to support a finding of age discrimination, it is worth noting that the Court nevertheless relied on this same statement as "direct evidence of age discrimination” sufficient to overcome the plaintiff's burden to establish a
prima facie
case.
Carpenter,
. Because of this, the Court deems it unnecessary to decide whether, as Plaintiffs claim, Defendants improperly raised the issue of pretext for the first time in their reply brief in support of their motion for summary judgment.
. Plainly, under the express terms of the Michigan statute, if Defendants did not act wrongfully in terminating Mr. Kulling, there would be no basis for awarding wrongful death damages. As discussed earlier, however, Plaintiffs have raised triable issues of fact as to whether Defendants unlawfully discriminated on the basis of age in discharging Mr. Kulling.
. This threshold issue also is implicated in Defendants' argument, made for the first time in their reply brief, that the severance agreement and release signed by Mr. Kulling following his termination, while perhaps ineffective to release his ADEA claim, serves to bar any possible state-law claim Mrs. Kulling might1 seek to pursue under Michigan's wrongful death statute. Because the Court must resolve this issue as to the governing law in any event, and because, following the July 27 hearing, the parties were given an opportunity to address this issue in supplemental briefs, the Court need not decide whether Defendants improperly raised their "release” argument for the first time in their reply brief.
. Because the FLSA is directed at violations of federal minimum wage and maximum hour standards, its remedies are defined in terms of "unpaid minimum wages” and "unpaid overtime compensation.” 29 U.S.C. § 216(b). These terms, however, have no evident meaning when applied to redress violations of federal age discrimination law. The ADEA bridges this gap in purpose and terminology by providing that "[ajmounts owing to a person as a result of a violation of [the ADEA] shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of [the remedial provisions of the FLSA].” 29 U.S.C. § 626(b). Through this provision, the ADEA "translates” the remedí
. Given these express ADEA provisions delineating the nature of the available relief (albeit in a circuitous fashion), the case cited by Plaintiffs at oral argument and in their supplemental brief,
Franklin v. Gwinnett County Public Schools,
. In contrast, and as alluded to in
Schleier,
following the enactment of the Civil Rights Act of 1991, traditional compensatory damages are now recoverable under Title VII.
See
42 U.S.C. § 1981a(a)(1);
see also Russell v. Microdyne Corp.,
. Specifically, the Louisiana survivorship statute permitted the survival of actions only in favor of a spouse, children, parents or siblings, and no person with the requisite relationship to the plaintiff was alive at the time of his death.
See
. The Court cautioned that its ruling was "a narrow one,” subject to.two qualifications. First, the Court emphasized that its holding was "limited to situations in which no claim is made that state law generally is inhospitable to survival of § 1983 actions” under all circumstances. 436. U.S. at 594,
. In
Jefferson v. City of Tarrant,
. Technically, ADEA does not authorize the recovery of ''punitive” damages, but only “liquidated damages” in cases involving "willful violations.”
See
29 U.S.C. § 626(b). The Supreme Court has held, however, that the “liquidated damages” authorized under ADEA are in fact “punitive in nature.”
Trans World Airlines, Inc. v. Thurston,
. As noted earlier, the Supreme Court recently granted certiorari to address this same question, but then dismissed the writ as improvidently granted.
See Jefferson, supra,
. As alluded to in this passage, the Tenth
. The Court notes that the "separateness'' of this theory of recovery is not evident from the face of the Complaint. Mrs. Kulling did not plead a separate cause of action under Michigan’s wrongful death statute, but instead cited it as a basis for recovering additional damages based on Defendants’ alleged ADEA violation. (See First Amended Complaint at ¶ 25.)
. Under this same reasoning, Mrs. Kulling’s state-law loss-of-consortium claim asserted in Count II of the amended complaint was released under the severance agreement signed by her husband, and is not saved by any alleged violation of the OWBPA. Again, Plaintiffs recognize that a loss-of-consortium claim is "derivative” only in the limited sense discussed earlier, and that, in all other respects, "loss of consortium is a separate cause of action.”
Eide v. Kelsey-Hayes Co.,
. Given the Court’s ruling on the issue of wrongful death damages, a number of pending motions are now moot. First, Defendants' June 28, 2000 motion to compel a psychiatric examination of Plaintiff Laverne Kulling and Plaintiffs' July 24, 2000 motion to quash the deposition of Dr. Sander J. Breiner are now moot, because the discovery requests that are the subject of these motions related to Plaintiff Kulling’s claim for emotional distress damages and the cause of Mr. Kulling’s suicide, neither of which has any remaining relevance to the outstanding ADEA claims. Similarly, Defendants' May 19, 2000 motion for severance and/or bifurcation and their June 16, 2000 motion for leave to file notice of non-party fault are also moot, because both of these motions rest upon the premise that the events surrounding Mr. Kulling's suicide might play a role at trial. For the reasons discussed above, the circumstances surrounding Mr. Kulling’s death will have no effect on the relief recoverable by Mrs. Kulling.
. Regarding this last motion, the Court sees no need for Defendants to take Dr. Bremer's deposition, and therefore presumes that this deposition will not go forward.