A Missouri appeals court has ruled that discrimination and retaliation claims survive a plaintiff’s death in a public employee whistleblower case.

The court ruled that claims of retaliation or discrimination under the Missouri Human Rights Act and the Public Employee Whistleblower Statute were injuries to the “rights” or “body” and qualify as personal injuries that do not abate when a plaintiff dies under the survivorship statute.

The case began in 2020, when Hazel Erby, a former St. Louis County Council member and employee of the county, filed a lawsuit against her employer alleging wrongful termination based on race, whistleblowing and disability discrimination. Erby had served as the directory of diversity, equity, and inclusion and part of her position included the county’s compliance with the Minority and Woman-Owned Business Enterprise Program, which required the county by ordinance to use a specific percentage of minority and women-owned contractors for county projects.

According to the lawsuit, Erby’s termination in August 2020 followed her complaints about her office being underfunded, as well as non-compliant contractors being awarded county projects, including during the construction of a temporary morgue in response to the COVID-19 pandemic. She alleged that County Executive Sam Page dismissed her concerns, calling the MWBE program “flawed” and stating he would not “deal with that.”

Erby further contended that Page’s decision to fire her was also influenced by her cancer diagnosis, which he had known about since 2018. She claimed that despite her illness, she remained capable of doing her job, but Page made comments suggesting her situation was too stressful.

Erby died in 2021 and her husband, Louis Erby, sought to continue the lawsuit as her estate’s representative, but the county argued that Erby’s claims did not survive under Missouri’s survivorship statute.

The circuit court agreed with the county, ruling that the MHRA and PEWS claims were not tort claims, and therefore abated at Erby’s death. The county also had alleged that Erby’s suit should be dismissed for failure to state a claim upon which relief can be granted. The circuit court ultimately granted the county’s motion to dismiss on the grounds that Erby’ s claims did not qualify as “personal injuries,” although it declined to rule on the other claims in the motion to dismiss.

Erby’s husband appealed.

The appeals court ruled that the discrimination and retaliation claims do in fact qualify as personal injuries under state statute, citing Gray v. Wallace, a 1958 Missouri Supreme Court decision that defined personal injuries as injuries to an individual’s “rights” or “body.”

“Gray explicitly defines personal injuries as injuries to an individual’s ‘rights’ or ‘body.’ … Gray holds that personal injuries are not specifically excepted from the survivorship statutes … and thus avoid abatement upon the death of the original plaintiff,” the opinion stated. “Claims of discrimination and retaliation squarely fit within Gray’s definition, therefore both categories of tort claims do not abate, and the circuit court erred in dismissing the Amended Petition on that basis.”

The appeals court determined that because Missouri law does not expressly exclude personal injury and retaliation claims from the survivorship statute, they can survive the plaintiff’s death.

“The legislature did not include (MHRA or PEWS) as exceptions to ‘personal injury’ actions which were not to abate,” the court wrote, stating that the claims “fit within Missouri’s definition of personal injury” under Gray.

The circuit court’s opinion was reversed and remanded.