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Jordan v. Stonemor Partners L.P.

United States District Court, W.D. Virginia, Lynchburg Division

January 17, 2017

Brandi Jordan, Plaintiff,
Stonemor Partners L.P., Defendant.



         This matter is before the Court upon Defendant Stonemor Partners L.P.'s Motion to Dismiss Count V of Plaintiff Brandi Jordan's Amended Complaint. (Dkt. 26). The first four counts of the Amended Complaint allege Title VII violations by Defendant in the form of race discrimination, sex (gender) discrimination, hostile work environment, and retaliation. (Dkt. 25 ¶¶ 40-55). Defendant does not seek the dismissal of these claims; rather, it asks the Court to dismiss a pendant state law claim of ordinary and gross negligence in Defendant's management of its employees. Defendant requests that the Court exercise its discretion and decline supplemental jurisdiction over Count V. Defendant alternatively argues that even if the Court exercises jurisdiction, Plaintiff has failed to state a claim upon which relief can be granted.

         The Court will exercise supplemental jurisdiction over Count V, as required by 28 U.S.C. § 1367(a), but it will nevertheless dismiss the claim because the tort of negligent supervision of an employee is not recognized by the Commonwealth of Virginia.

         I. Legal Standard

         A. Rule 12(b)(1)

         Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move for dismissal of an action based on lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A plaintiff “has the burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The moving party's motion to dismiss should be granted when “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (internal citation omitted).

         B. Rule 12(b)(6)

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Although a complaint “does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

         A court need not “accept the legal conclusions drawn from the facts” or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Factual allegations must be enough to raise a right to relief above the speculative level, ” Twombly, 550 U.S. at 555, with all allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff's favor. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir. 2005). Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         II. Facts as Alleged

         Plaintiff, an African-American female, was employed by Defendant from November 2010 until January 23, 2015. (Dkt. 25 ¶ 8). She worked initially as a manager of family service and funerals at Fort Hill Memorial Park. (Id. ¶ 9). She was later promoted to assistant manager, earning roughly $130, 000 per year prior to termination. (Id. ¶ 10).

         Anita Deeb, a white female, worked as Defendant's area manager at Fort Hill while Plaintiff was employed there. (Id. ¶ 17). Deeb allegedly had an interest in young African-American men as sexual partners, and she often discussed young men she called “house niggers” who came to her house to have sex. (Id. ¶ 18). In addition to these comments, Deeb also propositioned an African-American male employee. (Id. ¶ 19). When he declined ostensibly because he is a homosexual, Deeb responded angrily and referred to Jordan as a “faggot” in Plaintiff's presence. (Id. ¶ 21).

         Deeb told employees at Fort Hill “to sell African-American customers plots in the ‘Garden of Meditation' area of the cemetery[, ] which she called ‘Section 8' because the vast majority of persons buried in this part of the cemetery where [sic] African Americans.” (Id. ¶ 23). Deeb said that these plots were the only ones that African Americans could afford because they were downhill and could not been seen by white people visiting the cemetery. (Id. ¶ 24). Plaintiff repeatedly reported these and other inappropriate actions by Deeb to human resources, but no action was taken against Deeb. (Id. ¶¶ 21, 22, 24).

         In December 2014, Plaintiff had a miscarriage when she was two-months pregnant. (Id. ¶ 27). She alleges that this miscarriage was proximately caused by the stress from the hostile work environment created by Deeb and the lack of action by the human resources department at Defendant. (Id.). The miscarriage required Plaintiff to be on bed rest. (Id. ΒΆ 28). When she returned, Deeb was unsympathetic and told Plaintiff that miscarriages happen all the time; Deeb said she did not know why ...

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