Hazel Erby, through her husband as Personal Representative of her estate, sued St. Louis County in the Circuit Court of St. Louis County raising claims of discrimination and retaliation under the Missouri Human Rights Act (MHRA) and the Public Employee Whistleblower Statute (PEWS). The Circuit Court granted the County’s motion to dismiss, finding that Erby’s claims abated upon her death, and Erby’s estate appealed to the Missouri Court of Appeals, Eastern District.

Factual Overview

Erby, an African-American woman, was employed as the Director of the County’s Office of Diversity, Equity, and Inclusion (DEI), having previously served as a County Councilwoman. Her responsibilities included ensuring the County’s compliance with the Minority and Women-Owned Business Enterprise Program (MWBE), which required the County to use a specific percentage of minority and women-owned contractors for county projects.

Erby alleged that her office was underfunded and that the County accepted bids and worked with contractors who did not comply with MWBE requirements. She voiced these concerns to the County Executive, who was a Caucasian man. Erby further alleged that the County continued to disregard MWBE requirements, particularly during the construction of a temporary morgue during the COVID-19 pandemic. When Erby again raised these concerns, the County Executive allegedly stated he would not “deal with that” and commented that MWBE legislation was “flawed” and “no good.”

On August 18, 2020, the County Executive terminated Erby’s employment, allegedly telling her that he “didn’t see a path forward for [her]” and “didn’t need [her] on his staff anymore.” Erby also alleged that the County Executive told her that given her “situation,” he felt the job was “too stressful” for her. The “situation” allegedly referred to Erby’s cancer diagnosis, which the County Executive had been aware of since 2018. Erby maintained that despite her illness, she was able to perform her duties.

Erby filed her petition on October 16, 2020, but subsequently died. Her husband, as Personal Representative of her estate, was substituted as plaintiff and filed an Amended Petition. The County moved to dismiss, arguing that the MHRA and PEWS claims were not tort claims and therefore abated upon Erby’s death. The circuit court granted the motion to dismiss solely on the grounds that Erby’s claims did not qualify as “personal injuries” under the survivorship statute § 537.020 and thus abated upon her death.

Legal Analysis

Survivorship of Personal Injury Claims Under § 537.020

The court began by examining survivorship statutes in Missouri law. Under the common law, actions based in tort abated at the death of either the person wronged or the wrongdoer. However, § 537.020 provides that causes of action for personal injuries shall not abate by reason of the plaintiff’s death. Missouri also has a similar survival statute for property claims (§ 537.010) and specifically excepts from survival actions for “slander, libel, assault and battery or false imprisonment” (§ 537.030).

The court relied heavily on Gray v. Wallace, 319 S.W.2d 582 (Mo. 1958), which remains controlling precedent. In Gray, the Missouri Supreme Court defined “personal injuries” broadly as including both personal wrongs and bodily injury, encompassing “all actions for injuries to the person whether to the person’s rights or to his body.” The Supreme Court reasoned that because the legislature enumerated specific excepted causes of action that do not survive, and those exceptions did not include claims like malicious prosecution, such claims must survive a plaintiff’s death.

Following Gray, Missouri courts have extended this broad interpretation to various causes of action not specifically excluded by § 537.030, including legal malpractice, breach of fiduciary duty, and statutory claims under the Missouri Merchandising Practices Act.

MHRA Claims Survival Under § 537.020

The court first addressed whether Erby’s MHRA claims of disability and race discrimination and retaliation survived her death. This was a matter of first impression in Missouri. The court examined the substance of MHRA claims, which prohibit employers from discriminating or retaliating against employees on the basis of protected categories including race and disability.

The court found that MHRA claims sound in tort law and involve wrongs to a person. The very title of the Act emphasizes the “human rights” protected therein. MHRA recognizes the public purpose served by litigation that vindicates the rights of those discriminated against. An action for damages under the MHRA seeks redress for an intentional wrong done to a person, and damages may include awards for emotional distress, humiliation, and suffering.

Viewing Erby’s MHRA claims in light of Gray’s interpretation, the court found that the substance of MHRA claims and their available remedies are sufficiently tort-like to be claims of personal injury under § 537.020. The court reasoned that § 537.030 does not specifically exclude MHRA claims from survival, and an MHRA claim is reasonably construed as a wrong to the “rights” or “body” of Erby. Therefore, the court held that the circuit court erred in dismissing the Amended Petition on the grounds that Erby’s MHRA claims abated at her death.

PEWS Claim Survival Under § 537.020

The court next analyzed whether Erby’s PEWS claim survived her death. The PEWS prohibits public employers from taking disciplinary action, including dismissal, against public employees for whistleblower activity. The court found that, like the MHRA, the legislature adopted PEWS as a matter of public policy to allow plaintiffs to bring a personal cause of action for actual damages for disclosing improper conduct by the employer.

The court described the PEWS and MHRA as analogous statutes with a common purpose. Both are tort claims that can be reasonably construed as wrongs to plaintiffs’ “rights” or “bodies.” The types of claims are substantially similar, as are the means and types of recovery, including compensatory and punitive damages and attorneys’ fees. Because the legislative purpose of both statutes share a common purpose to protect employees from adverse action when reporting unlawful acts or misconduct, the court saw no reason to treat a PEWS claim differently from MHRA claims. Therefore, the court held that the circuit court erred in dismissing Erby’s PEWS claim on the basis that it did not survive her death.

The Missouri Court of Appeals reversed the circuit court’s judgment and remanded for the Amended Petition to be reinstated and for further proceedings.