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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
THOMAS E. PEREZ, Secretary of )
Labor, United States Department of )
Labor, )
)
Plaintiff, )
v. ) Case. No. 5:17-cv-5014-PKH
)
SOLDIERS OF THE CROSS d/b/a )
SHEPHERD’S CHAPEL CHURCH and )
DENNIS MURRAY, individually, )
)
Defendants. )
AMENDED BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
Come now, the Defendants, Soldiers of the Cross d/b/a Shepherd’s Chapel Church and
Dennis Murray, and for their Amended Brief in Support of their Motion to Dismiss, state:
I. Introduction
Thomas E. Perez, Secretary of Labor (“Plaintiff”), claims that Defendants violated Section
11(c) of the Occupational Health and Safety Act of 1970, 29 U.S.C. §§ 651-678 (“OSHA”). The
Plaintiff seeks payment of back wages and other benefits found due to Darrin and Kimberly
Carnahan. Darrin Carnahan’s claim did not survive his death and therefore entitlement to an award
of monetary damages likewise does not survive. Kimberly Carnahan did not partake in a protected
activity and therefore her claim should be dismissed. Fed. R. Civ. P. 12(b)(6).
II. Factual Background
Darrin and Kimberly Carnahan were employed by Defendants. On or about October 22,
2015, Darrin Carnahan filed a complaint with the Occupational Safety and Health Administration
alleging discrimination under Section 11(c)(1). On or about February 11, 2016, Kimberly
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Carnahan filed a complaint with the Occupational Safety and Health Administration alleging
discrimination under Section 11(c)(1). The Secretary alleges that Defendants terminated Darrin
Carnahan on or about October 13, 2015. Defendants terminated Kimberly Carnahan on or about
January 13, 2016. The Department of Labor alleges Defendants violated Section 11(c) of the
Occupational Safety and Health Act of 1970.
III. Law and Argument
A. Kimberly Carnahan did not participate in an activity protected by the
Occupational Health and Safety Act and her claim should be dismissed.
“Dismissal is proper when the plaintiff’s complaint fails to state a claim upon which relief
can be granted.” Northstar Industries v. Merrill Lynch & Co., 576 F.3d 827, 831-32 (8th Cir.
2009); Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The Plaintiff has the obligation to provide the “grounds of
his entitlement to relief [which] requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 550 (2007) (internal quotations omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level. Id.
Section 11(c)(1) provides generally that no person shall discharge or in any manner
discriminate against any employee because the employee has (a) filed any complaint under or
related to the Act; (b) instituted or caused to be instituted any proceeding under or related to the
Act; (c) has testified or is about to testify in any proceeding under the Act; or (d) exercised on
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behalf of himself or others of any right afforded by the Act. 29 U.S.C. § 660(c)(1). “In considering
retaliation cases, this Court has adopted a three-prong framework for analysis.” Reich v. Hoy Shoe
Co., 32 F.2d 361 (8th Cir. 1994). “First, the plaintiff must make a prima facie case by showing
participation in a protected activity, a subsequent adverse action by the employer, and some
evidence of a causal connection between the protected activity…and the subsequent adverse
action.” Id. (citing Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993). (internal
quotations omitted).
The Complaint fails allege any support or fact that Kimberly Carnahan participated in a
protected activity. The Plaintiff does not allege that Kimberly Carnahan participated in any of the
protected activities outlined in Section 11(c)(1), or any other protected activity that resulted in her
termination. In fact, the Complaint states in section VII, “Defendants discriminated against Darrin
Carnahan and Kimberly Carnahan by terminating Kimberly Carnahan’s employment on or about
January 13, 2016, because Darrin Carnahan engaged in activity protected by the Act.”
(emphasis added). The Plaintiff does not provide the grounds of entitlement to relief or state a
claim plausible on its face for Kimberly Carnahan. As such, the claim for Kimberly Carnahan
should be dismissed under Federal Rule of Civil Procedure 12(b)(6).
B. This Court Should Apply State Law in Deciding Whether the Occupational
Health and Safety Act, Section 11(c) Discrimination Claim Survives Darrin
Carnahan’s Death.
“Whether a federal claim survives is a question of federal law. Guenther v. Griffin Constr.
Co. No. 16-1760, at *3 (8th Cir. filed January 19, 2017); See also Carlson v. Green, 446 U.S. 14,
23 (1980). “[T]he question of survival is governed by federal common law when, as here, there is
no expression of contrary intent from Congress.” Id. (internal quotations omitted). There is no
“general survival statute for federal-question cases.” Id. at 3-4. Absent explicit instructions of
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Congress in the Occupational Health and Safety Act regarding survivability, federal common law
should apply. Id.
With regard to the federal common law, sometimes state law is incorporated while other
times a uniform rule is warranted. Id. “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.’”
Id. (quoting United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979). “[F]ederal courts
should incorporate state law as the federal rules of decision unless application of the particular
state law in question would frustrate specific objectives of the federal programs.” Kamen v.
Kemper Financial Services, Inc., 500 U.S. 90, 98 (1991) (citing Kimbell Foods, Inc., 440 U.S. at
728).
In Guenther, the Court stated that “Congress declared its interest in passing the [Americans
with Disabilities Act] ADA ….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. Guenther, No. 16-1760, at *5.
Unlike the ADA where Congress wanted national standards, Congress declared its intent for
OSHA to, in part, “encourage[e] States to assume the fullest responsibility for the administration
and enforcement of their occupational safety and health laws…” 29 U.S.C. § 651.
The Occupational Health and Safety Act (OSHA) does not address the issue of claim
survival, therefore state law should be incorporated to determine survival of the action.
C. Applying Arkansas Law, the Occupational Health and Safety Act, Section
11(c) Discrimination Claim Does Not Survive Darrin Carnahan’s Death.
Arkansas’s survival statute states:
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For wrongs done to the person or property of another, an action may
be maintained against a wrongdoer, and the action may be brought
by the person injured or, after his or her death, by his or her executor
or administrator against the wrongdoer or, after the death of the
wrongdoer against the executor or administrator of the wrongdoer,
in the same manner and with like effect in all respects as actions
founded on contracts.
Ark. Code Ann. § 16-62-101(a). The Arkansas Supreme Court has interpreted this statute
narrowly. “The language of this statute includes every action, the substantial character of which is
bodily injury, or damage of a physical character, but does not extend to torts which do not directly
affect the person, but only the feelings and reputation, such as malicious prosecution.” Ward v.
Blackwood, 41 Ark. 295 (1883). “The statute means injuries of a physical character to actual,
visible, tangible property, and not to property rights or interests which in their nature are invisible
and intangible.” Ark. Life Ins. Co. v. Am. Nat. Life Ins. Co., 110 Ark. 130, 137 (1913).
The Eighth Circuit in Parkerson v. Carrouth, 782 F.2d 1449 (8th Cir. 1986), followed the
above interpretations of the Arkansas survival statute and held that a plaintiff’s § 1983 civil rights
action did not survive the claimant’s death because the claims at issue sought recovery for
“property rights or interests which in their nature are invisible and intangible” and which claims
affected “only the feelings and reputation.” Id. at 1452.
In this case, the claimant’s Section 11(c) discrimination claim does not survive Darrin
Carnahan’s death under Arkansas law. Not only is the claim not being brought by his executor or
administrator, but the claim is premised on lost wages, lost benefits, reinstatement, and “other
appropriate relief” which are “invisible and intangible in nature.” Therefore, following the Eighth
Circuit’s interpretation of the Arkansas survival statute, this Court should dismiss the Plaintiff’s
Section 11(c) claim due to its failure to survive Darrin Carnahan’s death.
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IV. Conclusion
Plaintiff’s Complaint does not state or allege that Kimberly Carnahan participated in a
protected activity. The claim for discrimination under Section 11(c) for Kimberly Carnahan fails
to state a claim upon which relief can be granted and should be dismissed. This Court should look
to Arkansas’s survival statute when deciding whether the Plaintiff’s Section 11(c) discrimination
claim for Darrin Carnahan survived his death. Under Arkansas law, the Plaintiff’s Section 11(c)
discrimination claim for Darrin Carnahan did not survive and should be dismissed. As such, the
defendants request the Court grant their motion and dismiss the Plaintiff’s claims with prejudice.
Respectfully submitted,
Soldiers of the Cross d/b/a Shepherd’s
Chapel Church and Dennis Murray,
Defendants
By: /s/George M. Rozzell IV
George Rozzell, Ark Bar 08032
Kristin L. Pawlik, Ark Bar 99177
KEITH, MILLER, BUTLER,
SCHNEIDER & PAWLIK, PLLC
224 S. 2nd Street
Rogers, Arkansas 72756
Phone: 479-621-0006
Fax: 479-631-6890
Email: grozzell@arkattorneys.com
kpawlik@arkattorneys.com
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I, George Rozzell, hereby certify that on this 28th day of March, 2017, I filed the foregoing
using the Court’s CM/ECF system, which will send notice of the filing and a copy thereof to all
counsel of record.
/s/George M. Rozzell IV
George M. Rozzell IV (08032)
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