United States District Court, D. Colorado
KATHLEEN BRITTEN, the personal representative of the Estate of Steven Britten, Plaintiff,
MOUNTAIN VIEW ELECTRIC ASSOCIATION, INC., Defendant.
ORDER GRANTING MOTION TO SUBSTITUTE
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
Steven Britten (“Plaintiff”), through his
attorneys, moves to substitute the personal representative of
Plaintiff's estate, Kathleen Britten, in place of
Plaintiff. (ECF No. 70.)
counsel filed a Suggestion of Death on April 5, 2019,
notifying the Court and Defendant Mountain View Electric
Association, Inc., of Plaintiff's death and stating that
an appropriate motion to substitute the Estate of Mr. Britten
or Plaintiff's wife Kathleen Britten as personal
representative would be filed within 90 days. (ECF No. 65.)
The Court directed Plaintiff's counsel to file a motion
to substitute on or before June 14, 2019 (ECF No. 67), and
Plaintiff timely filed the instant motion (ECF No. 70).
a partial grant of Defendant's Motion for Summary
Judgment, Plaintiff has a sole remaining claim of gender
harassment in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq.
(“Title VII”), and the Colorado
Anti-Discrimination Act, Colo. Rev. Stat. §§
24-34-401 et seq. (“CADA”).
does not directly address whether a claim survives the death
of a plaintiff. However, the general Colorado survival
statute provides that “[a]ll causes of action, except
actions for slander or libel, shall survive and may be
brought or continued notwithstanding . . . death . . ., but
punitive damages shall not be awarded nor penalties adjudged
after the death of the person against whom such punitive
damages or penalties are claimed.” Colo. Rev. Stat.
§ 13-20-101. On motion, a court “may allow the
action to be continued by . . . the personal representative
of the deceased.” Id.
does Title VII address whether a claim survives the death of
a plaintiff. “If federal law does not provide a rule of
decision in a civil rights case, federal law will incorporate
the appropriate state law, unless that law is
‘inconsistent with the Constitution and laws of the
United States.” Slade for Estate of Slade v. U.S.
Postal Serv., 952 F.2d 357, 360 (10th Cir. 1991)
(internal quotation marks omitted and alterations
incorporated). Colorado's survival statute allowing all
causes of action to survive (excepting slander and libel) is
not inconsistent with Title VII, which does not address the
availability of damages after death, and is not inconsistent
with the policies underlying Title VII, “namely,
deterrence and victim compensation.” Rosenblum v.
Colo. Dep't of Health, 878 F.Supp. 1404, 1409 (D.
both the Title VII and CADA gender harassment claims survive
Plaintiff's death and the personal representative of
Plaintiff may be substituted for Plaintiff.
law governs who can be a ‘representative' or
‘successor.'” Eckerman v. Wells Fargo
Bank, N.A., 2018 WL 3219897, at *1 (D. Colo. June 29,
2018). Plaintiff was a resident of Iowa and died in Iowa. In
his will, he named Ms. Britten as the putative executor of
his estate and his sole beneficiary. Plaintiff's counsel
states that Plaintiff did not have any separate property to
distribute through probate proceedings, and the only property
he owned (apart from personal property) passed directly to
Ms. Britten through beneficiary designation. (ECF No. 70 at
3.) Thus, the Iowa Probate Code did not require Ms. Britten
to probate Plaintiff's will. See Iowa Code
§ 633.332. However, had the will been probated, Ms.
Britten likely would have been appointed executor of
Plaintiff's estate. Id. § 633.294 (first
preference for appointment of executor is person designated
in the will); see Id. 633.3 (defining
“personal representative” to include the
executor). Under Colorado law, Ms. Britten could have also
been appointed executor of the estate, and thus is an
appropriate personal representative. Colo. Rev. Stat. §
15-12-601; id. § 15-12-103; id §
15-12-301; id. § 15-10-201(39) (defining
“personal representative” to include the
executor, administrator or “persons who perform
substantially the same function”). The Court thus finds
that Kathleen Britten is a proper personal representative to
be substituted for Plaintiff in this action.
reasons set forth above, the Court ORDERS as follows:
1. Plaintiff's Verified Motion to Substitute Personal
Representative for Plaintiff (ECF No. 70) is GRANTED; and
2. Kathleen Britten, the personal representative of the
Estate of Steven Britten, is substituted as the sole
Plaintiff in this case, and the caption for this case is
changed accordingly. The parties and the Clerk shall use the
caption on this ...