United States District Court, W.D. Virginia, Lynchburg Division
K. MOON UNITED STATES DISTRICT JUDGE
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.
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.
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).
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).
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).
Facts as Alleged
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).
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).
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).
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. ¶ 28). When she
returned, Deeb was unsympathetic and told Plaintiff that
miscarriages happen all the time; Deeb said she did not know