because of their advanced age." Asklar, 95 F.R.D. at 423; see Rodriguez v. Taylor, 569 F.2d 1231, 1238 (3d Cir. 1977) ("The make whole standard of relief should be the touchstone . . in fashioning both legal and equitable remedies in (ADEA) cases.") In addition, these courts determined that recovery for damages under the ADEA remedies wrongs committed against the individual, runs to the individual wronged, and is not disproportionate to the injury sustained. Asklar, 95 F.R.D. at 423.
Some of these cases were decided, however, before the Supreme Court characterized liquidated damages as punitive in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985). While examining the legislative history of the ADEA, the Thurston Court stated that "Congress intended for liquidated damages to be punitive in nature." 469 U.S. at 125. The legislative history reflected that the purpose of the liquidated damages provision was to deter willful violations of the ADEA. 469 U.S. at 125.
Based upon the Tenth Circuit's analysis in Smith, 876 F.2d at 836-37, defendants argued that Kadam's claims for liquidated and punitive damages under the ADEA did not survive. While this Court recognizes the Smith holding in light of Thurston, Smith is distinguishable. Smith involved a claim solely for liquidated damages.
Emphasizing the traditional federal common law rule that actions for penalties abate at death, the Court held that a liquidated damages claim did not survive the death of a plaintiff. Smith, 876 F.2d at 826. In fact, the Smith court distinguished cases such as Asklar, which were decided before Thurston, and those cases in which only compensatory damages and reinstatement were sought under the ADEA. E.g., Khan, 679 F. Supp. at 756 (cites Asklar for rule that ADEA is primarily a remedial statute). As the Smith court emphasized, the Supreme Court cautioned that in examining the survival of a claim, "a court should look beyond forms and modes of proceedings' and concentrate on the nature of the action brought." Smith, 876 F.2d at 837 (quoting Schreiber, 110 U.S. at 80).
In the instant case, plaintiffs sought compensatory damages as well as punitive and liquidated damages. Unlike Smith, this is not a case essentially for liquidated damages under the ADEA, and so to focus on the generally remedial nature of the ADEA is not improper. Based upon the ADEA's remedial purpose of eradicating discrimination and consistent with other circuits, I find that plaintiff's claims for compensatory damages in the nature of emotional injuries under the ADEA survived his death. See Khan, 679 F. Supp. at 756 (held action for compensation and reinstatement survives death of plaintiff); Shkolnik v. Combustion Eng'g, Inc., 856 F. Supp. 82, 87-88 (D. Conn. 1994) (lost fringe benefits claim, including life insurance policy, survives death of plaintiff); cf. Slatin v. Stanford Research Inst., 590 F.2d 1292, 1295-96 (4th Cir. 1979) (held that Congress intended to prevent general damages award for pain and suffering under ADEA, finding reimbursement and reinstatement adequate to alleviate harm from discrimination).
However, after Thurston, the Third Circuit held that liquidated damages are punitive in nature. See Turner v. Schering-Plough Corp., 901 F.2d 335, 346 (3d Cir. 1990); Blum v. Witco Chem. Corp., 829 F.2d 367, 382 (3d Cir. 1987); Rickel v. C.I.R., 900 F.2d 655, 666 (3d Cir. 1990).
In light of the federal common-law rule and the governing law of this Circuit, I conclude that plaintiff's claims for liquidated and punitive damages which are penal in nature under the ADEA did not survive his death.
Accordingly, all the LAD claims and the ADEA claims for compensatory damages survived the death of Kadam, and so the motion for substitution is GRANTED as to those claims. However, the remaining claims for liquidated and punitive damages under the ADEA were penal in nature, did not survive Kadam's death, and the motion is DENIED as to such claims.
Ronald J. Hedges
United States Magistrate Judge