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Discrimination suit survived employee’s death because she filed EEOC charge while she was alive

By Marjorie Johnson, J.D.

Discrimination claims of an employee who died two months after filing an EEOC charge and four months before the EEOC mailed its right to sue letter to counsel could be advanced by her personal representative even though the employee was named as the party in the action, a federal district court in Alabama ruled, denying the employer’s motion to dismiss (Wilson v Big Lots, Inc, October 7, 2013, Smith, L).

The employee died two months after filing her EEOC charge alleging discrimination. Four months after her death, the EEOC mailed its notice of her right to sue to the attorney representing her and three others. Three months later, the instant action was commenced on behalf of the deceased employee and three others. The complaint identified the deceased employee as a plaintiff, but did not mention that she had died seven months earlier.

Five months before the instant action was filed, the deceased employee’s closest family member had been appointed as her minor child’s conservator and guardian. However, the employee’s claims were not asserted by the conservator in her representative capacity as either the guardian of the sole heir of the deceased employee or as personal representative of her estate. The only explanation provided by the plaintiffs’ counsel was that it took some to locate the proper representative of the deceased employee and that the conservator only recently retained plaintiff’s’ counsel to represent any claims to which the minor child was entitled.

Survival of claims. The fundamental question before the court was whether a claim under the federal employment discrimination statutes — upon which no suit had been filed prior to the date of a claimant’s death — could survive in favor of the personal representative of the decedent’s estate. The court first looked to the EEOC’s compliance manual, which addressed a circumstance in which a claimant dies prior to the agency’s resolution of her EEOC charge. The compliance manual states that if a charging party dies and there are no indications of class violations, “the legal unit should determine whether a cause of action under state law survives the party and who inherits the rights and interests arising out of the charge.” The case should be dismissed “if a charge does not survive the party’s death under state law, or if the charging party’s cooperation was necessary to the investigation and a disposition cannot be obtained.”

Under the relevant Alabama statute, tort claims for which no action had been filed prior to the death of the victim generally do not survive the death of the decedent in favor of the personal representative of the estate. The court reasoned that this statute applied to the instant action because, conceptually speaking, the elements of disparate treatment claims under the federal employment discrimination statutes are not greatly different from the elements of a common law tort claim based upon a theory of the defendant’s negligence or other actionable misconduct.

However, the Alabama Supreme has carved out a narrow exception to the general statutory rule that a claim sounding in tort for which no action has been filed does not survive the death of the would-be plaintiff in favor of the personal representative of the decedent’s estate. Specifically, the state’s high court held in a similar case that a notice of claim filed with the Jefferson County Commission one month prior to the plaintiff’s death was sufficient to constitute a filing and, therefore, suit could be commenced by the personal representative of the decedent’s estate.

The “peculiar” facts of this case presented an analogous circumstance. Specifically, the employee’s death occurred after the she filed her EEOC charge, but before the EEOC mailed a notice of her right to sue to the plaintiffs’ counsel. Based upon the rational of the Alabama Supreme Court, her employment discrimination claim survived her death under Alabama law and could have been commenced by the personal representative of her estate.

Dismissal not otherwise warranted. The court rejected the employer’s assertion that the deceased employee’s discrimination claims should nevertheless be dismissed due to the failure of plaintiffs’ counsel to assert them in the name of the duly appointed representative of her estate — the real party in interest. Notably, Federal Rule of Civil Procedure 17 provides that a court may not dismiss an action for failure to prosecute in the name of the real party in interest until — after an objection — a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

Accordingly, the court declined to dismiss the deceased employee’s claims on the basis that they were not being pursued by the real party in interest. However, plaintiffs’ counsel was given a deadline to file an amended complaint substituting the personal representative of the estate of the deceased employee. Otherwise, the claims asserted on her behalf would be dismissed with prejudice.