Survivor Lacks Standing to Bring EEO Claim
January 23, 2013
The U.S. District Court, Southern District of Mississippi, recently held that a deceased federal employee’s survivor does not have standing to bring an EEO claim after the employee’s death. Wright v. Department of Homeland Security, Civil Action No. 3:12CV514TSL-MTP (S.D. Miss. Dec. 7, 2012).
Following the death of a Transportation Security Administration employee, her husband alleged that the agency had subjected her to discrimination and harassment based on gender under Title VII of the Civil Rights Act of 1964. The district court dismissed the suit, concluding that he lacked standing to bring the claim.
The court noted the longstanding rule that prior to seeking judicial relief under Title VII relating to federal sector employment, an “aggrieved person” must exhaust her administrative remedies by filing a charge of discrimination with the EEO division of her agency. Federal regulations require that an aggrieved person who believes she has been discriminated against to consult an EEO counselor within 45 days of the date of the alleged discriminatory personnel action in order to informally resolve the matter. The deceased employee never sought EEO counseling, and her husband first attempted to initiate an EEO complaint 94 days after her death.
The deceased employee’s husband argued that the administrative exhaustion requirement should not apply to his wife because it applies to federal employees, and upon his wife’s death, she ceased to be a federal employee. He also argued that the harassment continued up to the point of his wife’s death, and her death rendered her incapable of initiating a complaint.
The court found that the husband’s claims lacked merit, noting that the administrative exhaustion requirement applies to all “aggrieved persons” regardless of whether the claimant ever was or remains a federal employee. The court found the husband correct in his assertion that his wife’s death rendered her incapable of initiating a complaint relating to alleged discrimination which occurred in the 45 days on and preceding her death, but that the husband still could not initiate an administrative complaint for discrimination following the death of his wife. Although numerous courts have held that a Title VII cause of action that has been commenced before an employee’s death survives the employee’s death, the EEOC has held that the survivor of a deceased federal employee does not have standing to file an EEO complaint.
The court found no case that recognized the authority of a deceased employee’s representative to initiate an administrative complaint of behalf of the deceased employee. Even if the husband had standing to initiate the EEO process on behalf of his deceased wife, the court held that her claim would still be subject to dismissal for lack of timeliness because the husband first attempted to initiate an administrative complaint 94 days after his wife’s death. Furthermore, a prima facie case of sexual harassment requires proof that the employee was subject to unwelcome conduct, and in the court’s opinion, the deceased employee was the only person who could have testified regarding her state of mind.