          United States Court of Appeals
                     For the First Circuit

No. 13-1405

                    JORGE L. VAELLO-CARMONA,

                           Plaintiff,

                LEYDA JEANNETTE MARQUEZ-NAVARRO;
               ESTATE OF JORGE L. VAELLO-CARMONA;
               NICHOLE JEANNETTE VAELLO-MARQUEZ;
                   JORGE LUIS VAELLO-MARQUEZ,

                    Petitioners, Appellants,

                               v.

              SIEMENS MEDICAL SOLUTIONS USA, INC.,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                   Howard, Selya, and Lipez,
                         Circuit Judges.


     Bámily López Ortiz, with whom Lopez Toro was on brief, for
appellants.
     Anita Montaner-Sevillano, with whom Patricia M. Marvez-
Valiente and McConnell Valdés LLC were on brief, for appellee.



                         March 17, 2015
            LIPEZ, Circuit Judge.     Leyda Jeannette Marquez-Navarro,

Nichole Jeannette Vaello-Marquez, Jorge Luis Vaello-Marquez, and

the Estate of Jorge L. Vaello-Carmona (collectively, "appellants")

appeal the district court's denial of their motion to substitute

themselves as plaintiffs in this case after the death of plaintiff

Jorge L. Vaello-Carmona.1      The district court ruled that Vaello-

Carmona's    employment    discrimination   claims   against   defendant

Siemens     Medical    Solutions   USA,   Inc.   ("Siemens")   were   not

inheritable and dismissed the case for failure to state a claim.

            We agree with appellants that causes of action under

Puerto Rico Law 100, P.R. Laws Ann. tit. 29, § 146 (the general

employment discrimination statute), Puerto Rico Law 44, P.R. Laws

Ann. tit. 1, § 505 (the employment disability discrimination

statute), and Title I of the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12101 et seq., are inheritable under Puerto

Rico law.    Hence, we vacate the district court's judgment.

                                    I.

            Because this case was dismissed below for failure to

state a claim under Fed. R. Civ. P. 12(b)(6), we recite the facts

as   alleged      in     the   complaint.         Medina-Velázquez    v.

Hernández-Gregorat, 767 F.3d 103, 105 (1st Cir. 2014).




     1
      Marquez-Navarro is Vaello-Carmona's wife. Nichole Jeannette
and Jorge Luis are their children.

                                    -2-
            Vaello-Carmona was an engineer who had worked in various

positions for Siemens since 1991.        Siemens is one of the world's

largest providers of healthcare products and services.         In January

2008, Vaello-Carmona was promoted to Branch Manager, the highest

position available at Siemens in Puerto Rico and the Caribbean. In

June   2008,    Vaello-Carmona   suffered    a   stroke,   which   required

intensive medical treatment and significantly affected his speech

and mobility.     Despite his disability, Vaello-Carmona continued to

work diligently for Siemens.        His sales from December 2008 to

September 2009 exceeded the yearly averages in the market by

twenty-five percent and gave Siemens its highest yearly volume of

sales in Puerto Rico and the Caribbean.

            On October 13, 2009, Vaello-Carmona was asked to meet

with his supervisor Charles Wood, the Regional Vice President for

Sales, to conduct his performance evaluation for the fiscal year

ending on September 30, 2009.       Before Vaello-Carmona was able to

enter the Siemens office that morning, Wood entered his vehicle in

the parking lot and informed Vaello-Carmona that he was fired,

effective      immediately.   On   October   16,   2009,   Vaello-Carmona

received a letter from Siemens confirming his dismissal.                The

letter stated that Vaello-Carmona had been laid off due to a

significant decline in the market.       After his termination, Vaello-

Carmona's physical and mental health deteriorated further, leaving




                                   -3-
him totally disabled at forty-six years old. On February 23, 2010,

Vaello-Carmona began receiving Social Security benefits.

          On March 24, 2010, Siemens notified Vaello-Carmona that

the company was going to start recruiting for a position similar to

the one he had previously held. However, the new position required

more travel to the Caribbean islands and Florida.     On March 30,

2010, Vaello-Carmona informed Siemens that he could not compete for

the new position because he had become totally disabled and was

receiving Social Security benefits.   Notwithstanding, on April 23,

2010, Vaello-Carmona received an offer from Siemens to rehire him

as the Branch Manager for Puerto Rico and the Caribbean.   Vaello-

Carmona declined this offer because he was totally disabled.

          On July 5, 2011, Vaello-Carmona filed a complaint against

Siemens, alleging disability discrimination in violation of Law

100, Law 44, and Title I of the ADA, and unlawful termination of

employment in violation of Law 80, P.R. Laws Ann. tit. 29, § 185a.

Vaello-Carmona claimed that Siemens fired him because of his

disability, entitling him to compensatory damages, back wages, lost

wages, and punitive damages.    Vaello-Carmona died on August 13,

2011, about one month after filing his complaint.    On January 11,

2012, appellants moved to substitute themselves in Vaello-Carmona's

position in accordance with Fed. R. Civ. P. 25(a).

          On July 9, 2012, the district court denied the motion and

dismissed Vaello-Carmona's complaint.   The court held that claims


                               -4-
pursuant to Law 100, Law 44, and Title I of the ADA were not

inheritable and dismissed those claims with prejudice. Because the

district court had disposed of the only federal claim in this case,

it chose not to take supplemental jurisdiction over the Law 80

claim and dismissed it without prejudice.2    Appellants moved for

reconsideration pursuant to Fed. R. Civ. P. 59(e). On February 14,

2013, the district court denied the motion.

                                  II.

          We review de novo a Rule 12(b)(6) dismissal of the

plaintiff's claims. Medina-Velázquez, 767 F.3d at 108. We examine

whether the complaint states a claim for which relief can be

granted when we construe the well-pleaded facts in the light most

favorable to the plaintiff, accepting their truth and drawing all

reasonable inferences in the plaintiff's favor.    Id.

          The sole questions on appeal are whether employment

discrimination claims under Law 100, Law 44, and Title I of the ADA

survive Vaello-Carmona's death.

A. Law 100 and Law 44

          The district court exercised supplemental jurisdiction

over the Law 100 and Law 44 claims.     We apply Puerto Rico law to




     2
       Law 80 "provides a severance pay remedy for an employee
contracted without a fixed term, who is discharged from his/her
employment without just cause." Otero-Burgos v. Inter Am. Univ.,
558 F.3d 1, 1 (1st Cir. 2009) (internal quotation marks omitted).

                                  -5-
determine whether they are inheritable.             See Hoyos v. Telecorp

Commc'ns, Inc., 488 F.3d 1, 5 (1st Cir. 2007).

           Law 100 prohibits discrimination in employment.               The

statute provides monetary damages to employees if their employer

discriminates against them on the basis of "age . . . , race,

color, sex, social or national origin, social condition, political

affiliation or political or religious ideology . . . , or for being

a victim or perceived as a victim of domestic violence, sexual

aggression or stalking."    P.R. Laws Ann. tit. 29, § 146; see also

Rodriguez Cruz v. Padilla Ayala, 125 P.R. Dec. 486, 508 (1990)

("The   legislative   history   of    [Law]   100   shows   that   its   main

objective was to protect employees in the private sector from all

types of discrimination . . . ." (emphasis omitted)).                Law 44

protects employees against discrimination on the basis of physical

or mental limitations.     The statute provides monetary damages to

employees if their employers "put into effect or use discriminatory

employment procedures, methods, or practices against persons with

any kind of physical, mental or sensory disability just for the

sake of said handicap."     P.R. Laws Ann. tit. 1, § 505.            As the

district court stated, "the only noticeable difference between Laws

100 and 44 is that the latter is more specific as to which

employees it protects."      Vaello-Carmona v. Med. Solutions USA,

Inc., No. CIV. 11-1637-JAG, 2012 WL 2835536, at *3 (D.P.R. July 9,

2012); see also Rivera Flores v. Cía ABC, 138 P.R. Dec. 1, 5 (1995)


                                     -6-
(explaining how Law 44 incorporates "the remedies, powers, and

procedures" established in Law 100).

           Both statutes are silent on whether claims made by an

individual employee against his employer under Law 100 and Law 44

survive   the   death    of    the   employee.      In   Sucesión    Álvarez    v.

Secretario de Justicia, 150 P.R. Dec. 252 (2000), the Puerto Rico

Supreme Court provided guidance on whether a claim under Puerto

Rico law is inheritable. The court held that the amount a deceased

public official accrued in sick leave is transmissible to his

heirs.    Id. at 264.      In doing so, the Puerto Rico Supreme Court

delineated which types of claims survive an individual's death and

which do not.

           The court first recognized that the Puerto Rico Civil

Code "does not contain a uniform rule about the assets, rights and

obligations that are transmissible by inheritance and those which,

because they are very personal, conclude with the life of their

owner."   Id. at 267 (internal quotation marks omitted).                  Absent a

uniform statutory rule, the court relied on a treatise by Spanish

commentator     José    Puig   Brutau   when     setting   forth    the   general

standard for survivorship claims under Puerto Rico law.                   See id.

(citing 1 J. Puig Brutau, Fundamentos de Derecho Civil 4463 (2d ed.

1975)).   Adopting Puig Brutau's commentary, the court stated:

           [T]here are transmissible by inheritance,
           among others: the patrimonial rights; the
           rights of a partner in capital partnerships;
           the quality of partner in a partnership of

                                        -7-
            persons; the action to claim legitimate
            filiation; the action to contest the juridical
            acts or businesses entered into by the
            deceased in fraud of the legitimate; the
            different modalities of industrial property;
            copyright; obligations, except those of a very
            personal nature or when the same involve a
            non-expendable     consideration;      funeral
            property; [and] the right of the deceased to
            obtain indemnification for the damages that
            were caused to him during his life.

Id. at 267-68 (emphasis added).

            Law 100 and Law 44 provide monetary compensation to an

employee for "damages that were caused to him during his life" due

to discrimination from his employer.       Id. at 268.       Therefore,

according to Sucesión Álvarez, claims asserted pursuant to these

antidiscrimination statutes are inheritable under Puerto Rico law.

            The district court agreed that "Sucesión Álvarez would

seem to approve of the transmissibility of plaintiff's claims in

this case."   Vaello-Carmona, 2012 WL 2835536, at *2.    However, the

court found that Law 100 and Law 44 do not survive Vaello-Carmona's

death because rights under these statutes are "very personal

rights."    Id. at *3-4 (internal quotation marks omitted).    Siemens

agrees with the district court's analysis and argues that the

Puerto Rico Supreme Court's decisions in Santini Rivera v. Serv

Air, Inc., P.R. Offic. Trans., 1994 WL 909527 (P.R. 1994), and Cruz

Roche v. De Jesús Colón, 182 P.R. Dec. 313 (2011), support its

position.




                                  -8-
          In Santini Rivera, the parents and girlfriend of an

employee, Ramón A. Santini Rivera ("Santini"), appeared as co-

plaintiffs in Santini's lawsuit against his employer, Serv Air,

Inc. 1994 WL 909527. Santini alleged that Serv Air, Inc. violated

Law 100 by denying him positions in the company because of his

national origin and subjecting him to "harassment, persecution,

hounding, and discrimination," which caused him mental anguish and

forced him to quit his job.       Id.   His parents and girlfriend

attempted to bring their own cause of action under Law 100 against

Serv Air, Inc. for the harm they experienced as a consequence of

the discrimination suffered by Santini at his workplace. Id. They

alleged that "they had suffered serious mental anguish when they

saw the depressive state that [Santini] was in."    Id. (Naveira de

Rodón, J., concurring in part and dissenting in part).     The Puerto

Rico Supreme Court found that the relatives did not have standing

to bring their own cause of action under Law 100.    Id.   The court

stated that Law 100 "has nothing to do . . . with third persons or

with other persons that are not employees. . . .      Since the Act

does not apply to [a worker's relatives], it cannot become a source

of rights for said relatives."3    Id. (emphasis in original).


     3
       The Puerto Rico Supreme Court also held that Santini's
relatives "would have a cause of action under sec. 1802 of the
Puerto Rico Civil Code." Santini Rivera, 1994 WL 909527; see also
id. ("[T]he relatives of an employee who has been a victim of [Law]
100 discriminatory treatment at the hands of his employer have a
cause of action under Civil Code sec. 1802 to be compensated for
the harm resulting from said employment discrimination."). Section

                                  -9-
          Similarly, in Cruz Roche, the Puerto Rico Supreme Court

held that the ex-husband of an employee did not have standing to

intervene in his former wife's lawsuit asserting a Law 100 claim,

which concerned conduct that allegedly took place while the couple

was still married.   182 P.R. Dec. at 324.    The court stated that

Law 100 "is very personal in nature; that is, it protects and

benefits only the employee who is discriminated and not the progeny

or the close relatives of the same."   Id. at 320; see also id. at

324 ("[E]ven though there is a conjugal amount in the lump sum

granted as compensation pursuant to Law No. 100, the cause of

action continues to be very personal while there is no final and

binding judgment that disposes of the action.").

          Santini Rivera and Cruz Roche are distinguishable from

the present case.    Neither case holds that Law 100 claims assert

"very personal rights" that are not inheritable under Puerto Rico

law.   They merely stand for the proposition that relatives of an

aggrieved individual are not entitled to their own cause of action

(or to intervene on their own behalf) under Law 100 because of the

personal nature of Law 100 claims. In this case, appellants do not

attempt to assert their own Law 100 claims.   Instead, they seek to

substitute   themselves   as   plaintiffs    in   order   to   assert


1802 is a broad tort law that compensates individuals who are
damaged by "an act or omission . . . through fault or negligence."
P.R. Laws Ann. tit. 31, § 5141.



                               -10-
Vaello-Carmona's claims against Siemens. Nothing in Santini Rivera

or Cruz Roche forecloses their ability to do so.

             It is true that Sucesión Álvarez states that rights that

"are not transmissible by inheritance" include "those that are very

personal."    150 P.R. Dec. at 268.    Because the Puerto Rico Supreme

Court has described Law 100 as "very personal in nature," Cruz

Roche, 182 P.R. Dec. at 320, Siemens contends that Law 100 claims

cannot be inheritable.     However, in Widow of Delgado v. Bos. Ins.

Co., the Puerto Rico Supreme Court detailed which "very personal

rights" do not survive an individual's death. 1 P.R. Offic. Trans.

823, 830 (1973).     These "very personal rights" include "the right

to usufruct, use, habitation, life annuities, patria potestas,

support, tutorship, personal servitudes, certain labor and services

contracts, the action to dispute legitimacy of child, and the

action granted the donor for causes of ingratitude, and those

rights and obligations which are extinguished by agreement upon the

death of the contractor."      Id.    The court concluded that a tort

claim under P.R. Laws Ann. tit. 31, § 5141, "is not in the list of

very personal rights which die with the person."        Id.   Similarly,

employment discrimination claims under Law 100 and Law 44 are not

"in the list of very personal rights" that cannot be inherited. To

hold otherwise would be to contradict Sucesión Álvarez's clear

statement     that   the   rights     "of   the   deceased    to   obtain

indemnification for the damages that were caused to him during his


                                    -11-
life" are inheritable.           150 P.R. Dec. at 268.         Therefore, we hold

that Vaello-Carmona's Law 100 and Law 44 claims survive his death,

and the district court erred when it denied appellants' motion to

substitute themselves as plaintiffs in this case.

B.   Title I of the ADA

                 Vaello-Carmona      has     also     asserted      an   employment

discrimination claim under Title I of the ADA.                     When a cause of

action arises from a federal statute, we generally apply federal

law to determine whether that claim survives the plaintiff's death.

See Carlson v. Green, 446 U.S. 14, 23 (1980).                      The survival of

claims under federal law depends in the first instance on whether

there       is   an   applicable     federal      survival   statute.4     However,

"[t]here         is   no   general   survival     statute    for   federal-question

cases," and the ADA is silent as to whether a Title I claim is

inheritable.           7C Charles A. Wright, Arthur R. Miller & Mary K.

Kane, Federal Practice and Procedure § 1954 (3d ed. 2007). Without

statutory guidance, the lower courts are split as to whether to

evaluate the survival of an ADA claim under federal common law or

the law of the state in which the court hears the claim.5                    We do


        4
       For example, Congress explicitly provides that an action
under the Federal Employers' Liability Act will survive the death
of an employee. See 45 U.S.C. § 59 (stating that "[a]ny right of
action given by this chapter to a person suffering injury shall
survive to his or her personal representative, for the benefit of
the surviving widow or husband and children of such employee").
        5
            The dispute turns on whether 42 U.S.C. § 1988 applies to the
ADA.        Section 1988 instructs courts to apply state law when there

                                           -12-
not need to resolve this dispute because the parties agree that

Puerto Rico law should apply to the ADA claim.      Therefore, we

assume, without deciding, that Puerto Rico law governs. See, e.g.,

Ji v. Bose Corp., 626 F.3d 116, 129 (1st Cir. 2010) (assuming,

without deciding, that legal standard applies where "both parties

agree that the standard . . . was correct").

          Title I of the ADA protects employees with disabilities

against discrimination. The statute allows for monetary damages to

qualified employees with disabilities if they are discriminated

against "on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment."    42 U.S.C. § 12112(a); see also

Rederford v. U.S. Airways, Inc., 589 F.3d 30, 37 (1st Cir. 2009)

(citing 42 U.S.C. § 12117) (stating that "Title I of the ADA

explicitly provides for the same remedies available for employment



are legislative gaps in remedies provided for in certain types of
federal civil rights violations. See Robertson v. Wegmann, 436
U.S. 584, 588 (1978). Some courts interpret § 1988 as applying to
the ADA, and, therefore, apply state law to determine whether an
ADA claim is inheritable.    See, e.g., Cardella v. CVS Caremark
Corp., No. 3:08-CV-1656-M, 2010 WL 1141393, at *1 (N.D. Tex. Mar.
25, 2010); Rosenblum v. Colo. Dep't of Health, 878 F. Supp. 1404,
1408-09 (D. Colo. 1994). Others find that the ADA is not among the
enumerated statutes explicitly listed in § 1988, and, hence, apply
federal common law. See, e.g., Kettner v. Compass Group USA, Inc.,
570 F. Supp. 2d 1121, 1126-33 (D. Minn. 2008); Hanson v. Atl.
Research Corp., No. 4:02-CV-00301-SMR, 2003 WL 430484, at *4 (E.D.
Ark. Feb. 14, 2003). For purposes of § 1988, Puerto Rico is the
functional equivalent of a state.

                              -13-
discrimination suits in Title VII of the Civil Rights Act of 1964,"

which includes monetary damages).

            Just as with Law 100 and Law 44, claims arising under

Title I of the ADA provide monetary compensation to an employee for

"damages    that   were   caused   to   him   during   his   life"   due   to

discrimination from his employer.        Sucesión Álvarez, 150 P.R. Dec.

at 268; see also Ruiz Rivera v. Pfizer Pharmaceuticals, 521 F.3d

76, 87 (1st Cir. 2008) (stating that Law 44 is "the Puerto Rico

analogue to the ADA").       Therefore, applying Puerto Rico law, we

hold that Vaello-Carmona's employment discrimination claim under

Title I of the ADA is inheritable.

C. Law 80

            After dismissing the Law 100, Law 44, and Title I of the

ADA claims, the district court dismissed Vaello-Carmona's pendent

Law 80 claim without prejudice.         Because we conclude the district

court erred with regard to the other claims, we also vacate the

dismissal of the Law 80 claim.

                                   III.

            For the reasons stated above, we vacate the district

court's dismissal of Vaello-Carmona's Law 100, Law 44, Law 80, and

Title I of the ADA claims, and remand for proceedings consistent

with this decision.

            Costs to appellants.

            So ordered.


                                   -14-
