Jury to consider hostile-work-environment claim

Plaintiff describes unprofessional conduct such as discussing sexual matters

By Rebecca M. Lightle
BridgeTower Media Newswires

RICHMOND, VA - An African-American employee, fired based on her employer's reasonable belief that she had mishandled company funds, can proceed to trial on her claim of hostile work environment based on both race and sex, despite evidence that she failed to disclose a prior misdemeanor on her professional license application.

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Background

Plaintiff Brandi Jordan is an African-American woman who was employed from 2011-2015 selling cemetery plots and funeral services for Defendant Stonemor Partners LP. Although discovery revealed that she did not disclose a misdemeanor conviction in her cemetery-sales license application, she appears to have been a good employee, receiving frequent congratulatory letters and performance-based bonuses from the company.

Jordan's supervisor was area manager Anita Deeb. Jordan has testified that Deeb frequently used the "n-word" at work, occasionally directing it at Jordan. Deeb also told Jordan and her coworkers that African-American customers could not be buried in parts of the cemetery reserved for white customers. Jordan also described other unprofessional conduct, such as discussing sexual matters, calling Jordan a "bitch," and making sexual advances to Jordan's male coworkers.

Following other employee complaints about Deeb, Jordan reported Deeb's behavior in both early and mid-2014. After Jordan's second complaint, Deeb received a written warning and was moved away from Jordan's worksite to another cemetery. However, Jordan was still required to interact with Deeb, who was still her supervisor, and Deeb's behavior did not change.

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Legitimate termination

Stonemor terminated Jordan's employment in January 2015 because she was the last person responsible for $2,070 that went missing. StoneMor then discovered that Jordan had used white-out to make unauthorized changes to other contracts. Deeb did not participate in the investigations that revealed these facts or in the decision to terminate Jordan. After Jordan was fired, Deeb received a final written warning before being terminated herself in early 2016.

Jordan's termination is the only adverse action at issue in her race-discrimination claim. In support of her prima facie case, Jordan identifies Deeb herself as a comparator, pointing out that, while Jordan was fired because $2,070 was missing, Deeb was not fired for using racially and sexually offensive comments. But Deeb is not an appropriate comparator because she was an area manager, while Jordan was an assistant manager. Thus, Deeb's conduct and role in the company were not sufficiently comparable to Jordan's for her to function as a comparator.

Even if Jordan could make out a prima facie case, Stonemor would still prevail because it articulated a legitimate, nondiscriminatory reason for firing Jordan. Its corporate human-resources department recommended that the company terminate Jordan's employment because she could not account for the missing funds. Although Jordan contends she did not actually take the money, all of the evidence demonstrates that Stonemor reasonably believed she was guilty. Accordingly, Stonemor is entitled to summary judgment on Jordan's race-discrimination and retaliation claims.

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Hostile work environment

Nevertheless, Jordan's testimony is sufficient to support her claim for hostile work environment based on both Jordan's race and sex. Jordan's deposition was clear that Deeb used the n-word continuously, even after StoneMor moved her to another location, saying it in front of Jordan and sometimes directing it at her. Even limited use of this epithet would be sufficiently severe to make out Jordan's prima facie case. Jordan also stated that Deeb would not give sales leads to Jordan because Jordan was not limiting her black customers to the section of the cemetery that Deeb called "section eight."

The existence of a sexually hostile work environment is a closer question on these facts but is ultimately triable. In deposition, Jordan described how Deeb would give sales leads to employees based on whether they were wearing revealing clothing. Jordan felt like she was being "told to use pretty much your boobs and your butt to make a sale" to male customers. She alleges that because she didn't follow this advice, Deeb did not give her certain sales leads. The fact that Deeb was Jordan's supervisor makes this harassment more problematic. By limiting the leads Jordan could receive, a reasonable jury could find that Deeb effectively altered the conditions of Jordan's employment.

Stonemor is not entitled to summary judgment based on the Faragher/Ellerth defense because there is a genuine dispute about whether Stonemor exercised reasonable care to prevent the harassing behavior. Its employees had long complained about Deeb's behavior without any corrective action being taken, which is evidence that its nondiscrimination policy was dysfunctional. Although Stonemor eventually moved Deeb to another office, Jordan testified that she still had to speak with Deeb every day because Deeb was still her manager. Because jurors could disagree about whether Stonemor's corrective actions demonstrated "reasonable care," it cannot prevail at the summary-judgment stage.

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Damages

Stonemor is entitled to summary judgment as to the remedies of reinstatement and front pay because Stonemor's after-acquired evidence of her undisclosed misdemeanor would have been grounds for her termination in any event. Jordan also will not be entitled to damages relating to the miscarriage she says was caused by her work stress because she has not presented any admissible evidence regarding causation.

However, the difference between Jordan's six-figure salary at Stonemor and the $40,000 she earned annually at her next employment, in addition to her testimony regarding her emotional distress, provides adequate basis for a jury to reasonably award compensatory damages. Punitive damages will also be available under 42 U.S.C. § 1981a(b)(1), given remaining disputes about whether Stonemor was aware it was acting in violation of federal law.

Published: Tue, Mar 13, 2018

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