Retaliatory Termination – Dead Man’s Act

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7^th Circuit Court of Appeals

Case Name: Luis A. Plata v. Eureka Locker, Inc.

Case No.: 16-2030

Officials: WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.

Focus: Retaliatory Termination – Dead Man’s Act

Plata, a butcher employed by Eureka Locker, a meat-processing company, sued Eureka under both state law and federal law (42 U.S.C. § 2000e et seq.), charging it with having fired him in retaliation for his having filed a worker’s compensation claim against the company. He claimed that Scott Bittner, the company’s owner, had told him he was “done” after he told Bittner that he intended to file a worker’s compensation claim. Bittner died suddenly while the case was in its early stages. That left Plata the only witness to the alleged conversation. Eureka argued to the district court that the Illinois Dead Man’s Act, 735 ILCS 5/8-301, barred Plata from testifying about a conversation with Bittner that the latter, being dead, could no longer rebut. The statute “forbids a party to a suit by or against a firm to testify about any conversation with a dead agent of the firm, unless a living agent of the firm was also present at the conversation (to testify as the dead man himself might have testified to what was said).” Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir. 1989). Although Plata’s suit was filed in federal rather than state court, Rule 601 of the Federal Rules of Evidence (“Competency to Testify in General”) states that “in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision,” and Plata’s suit charged a violation of state as well as federal law.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.