By Brandi O. Brown, J.D.
A cemetery employee who alleged that her supervisor used the n-word daily and demanded that salespeople segregate the plots of African-American customers will proceed with her race and sex-based hostile work environment claims, a federal district court in Virginia ruled. However, the court concluded that the employee’s discriminatory termination and retaliation claims could not proceed (Jordan v. StoneMor Partners L.P., February 27, 2018, Moon, N.).
The plaintiff, an African-American female, worked for the employer for four years. She started out as a family services counselor and, while in that position, obtained a Virginia Cemetery Sales License. By the end of her tenure, she had become an assistant manager at one of the employer’s cemeteries and was earning $130,000.
Supervisor’s conduct. The employee alleged that her female supervisor made frequent use of the n-word, both directed towards the employee and towards others. The supervisor instructed cemetery salespeople that African-American customers could only be buried in certain parts of the cemetery (which she referred to as “Section Eight,” an allusion to the subsidized housing). She sometimes refused to give the employee sales leads because the employee would not follow that directive.
The supervisor also injected sex into the workplace. She told her employees she liked young African-American men as sexual partners, referring to her African-American boyfriends as “house n***ers,” and she made sexual advances on African-American male employees. She called a male employee late at night and asked him out. She referred to an employee who declined her advances as a “fa**ot.” She called the employee a “b**ch” and told female salespeople to wear revealing clothing to make sales.
Several employees, including the plaintiff, reported the supervisor’s behavior in 2013 and 2014, and the supervisor received a written warning in late 2014. She was then moved to another cemetery, although she remained the area manager and continued to interact with the employee almost every day. The supervisor was eventually discharged, in 2016.
Lawsuit. In early 2015, the employee was fired after a fraud investigation indicated that over $2,000 was missing. The employee was blamed for it, although ultimately it was shown that another employee had taken the money. The employee filed suit, alleging violations of Title VII and Section 1981. In addition to granting an evidentiary motion to exclude the employee’s expert and limiting the categories of damages available to the employee, the court rejected the employer’s affirmative defenses regarding the statute of limitations and administrative exhaustion, denied the employer’s motion for judgment on the pleadings, and granted, in part, its motion for summary judgment. The court denied the employee’s cross-motion for summary judgment, noting material disputes remained.
Hostile work environment. The employee’s hostile work environment claims survived the employer’s summary judgment motion. With regards to the race claim, the supervisor’s comments were sufficiently severe or pervasive. The employee testified that the supervisor’s comments were continuously made, and were directed towards the employee at times, and said in front of her frequently.
Although a closer question, the court also held the employee made out a prima facie case of a sexually hostile work environment. Some of the conduct did not relate to the employee’s sex (the “fa**ot” comment and the sexual advances to male employees) and some was not sufficiently severe to rise to sexual harassment, including the supervisor’s refusal to give the employee a day off following her miscarriage, and her use of the word “b**ch”). However, testimony that the supervisor told female employees to dress more provocatively and gave sales leads based on what employees were wearing could lead a reasonable jury to conclude that the environment was sufficiently hostile to alter the conditions of the plaintiff’s employment.
Moreover, in the Fourth Circuit, evidence that a workplace is tainted by both sex and race discrimination serves to bolster a hostile work environment claim, the court explained. Because there was also a genuine dispute over whether the employer acted reasonably in response to the supervisor’s conduct, the Faragher/Ellerth defense did not entitle the employer to summary judgment.
Other claims falter. Claims of discrimination and retaliation based on her discharge fell short, however. Even if she made out a prima facie case, the employee could not show that the employer’s reason for terminating her was pretextual. The employer fired her because of the missing money and there was no evidence that the supervisor’s racial animus was connected to that action. Although the employee was ultimately shown to be innocent, the employer had reasonably believed she had taken the missing money, as she was the last person responsible for it.
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