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Jordan v. Stonemor Partners L.P.

United States District Court, W.D. Virginia

February 27, 2018

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



         Brandi Jordan (“Jordan”) accused her former employer StoneMor Partners L.P. (“StoneMor”) of discriminating against her based on her race and sex. She brought race discrimination (Count I), sex discrimination (Count II), hostile work environment (Count III), and retaliation (Count IV) claims under Title VII and Section 1981.[1] The Court previously granted a motion to dismiss a state law claim (Count V), but did not address the first four counts. (Dkt. 37). StoneMor now moves for judgment on the pleadings, or in the alternative, summary judgment on all remaining counts. (Dkt. 66). Jordan moves for summary judgment on Counts I, III, and IV. (Dkt. 67). Three evidentiary motions are also before the Court. (Dkts. 65, 69, 74).

         First, I grant StoneMor's motion to exclude Jordan's expert, but deny Jordan's motion to exclude StoneMor's expert. Second, I deny StoneMor's motion for judgment on the pleadings, as it is more efficient for the Court to utilize its discretion to address these claims on summary judgment. Third, I address the motions for summary judgment. At oral argument, Jordan conceded that StoneMor is entitled to summary judgment on the sex discrimination claim. I also grant StoneMor's motion for summary judgment on the race discrimination and retaliation claims because Jordan was fired for a legitimate reason, but I deny its motion for summary judgment on the hostile work environment claim because of remaining disputes of material facts. Likewise, I deny Jordan's cross-motion for summary judgment on the hostile work environment claim because of the same disputes of material facts. Finally, I limit the categories of damages that will be available to Jordan, but do not grant StoneMor's motion for summary judgment on damages in whole.

         I. Motion for Judgment on the Pleadings

         StoneMor first moves for judgment on the pleadings. (Dkt. 66-1).[2] When, as here, the parties have also put forward evidence from the record, “it is within the district court's discretion whether to accept extra-pleading matter on a motion for judgment on the pleadings and treat it as one for summary judgment or to reject it and maintain the character of the motion as one under Rule 12(c).” McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th Cir. 2010) (Agee, J. concurring in part and dissenting in part) (quoting 5C Wright & Miller, Federal Practice and Procedure § 1371 (3d ed. 2010)); Covey v. Assessor of Ohio Cty., 777 F.3d 186, 193 n.7 (4th Cir. 2015). Here, I will consider StoneMor's arguments for judgment on the pleadings as part of its motion for summary judgment because, if I granted the motion for judgment on the pleadings, I would likely to have to look at the evidence to decide whether to allow Jordan leave to amend.

         II. Motions to Exclude Expert Testimony

         There are cross-motions to exclude the parties' respective experts. Because this testimony determines whether there is a genuine dispute regarding certain categories of damages, 1 address it before the motions for summary judgment. See Ruffin v. Shaw Indus., Inc., 149 F.3d 294, 296 (4th Cir. 1998). I will grant StoneMor's motion to exclude Jordan's expert testimony, (dkt. 65), because Jordan did not disclose her expert until 377 days after the Court's deadline and because discovery was then closed. I will deny Jordan's motion to exclude StoneMor's expert because StoneMor's expert is adequately qualified and was disclosed in a timely manner.

         A. StoneMor's Motion to Exclude Jordan's Expert Testimony

         After discovery had closed and the deadline for dispositive motions and motions to exclude approached, StoneMor filed a motion to exclude all of Jordan's expert testimony. (Dkt. 65). The basis for this motion was simple: Jordan had yet to disclose any expert testimony in accordance with Fed.R.Civ.P. 26(a)(2) and the pretrial order. (Dkt. 31). Jordan never directly responded to this motion; instead she filed a “Disclosure of treating physicians and clinicians expected to testify” five days later, on December 26, 2017. (Dkt. 70).[3] Jordan's disclosure identified at least one doctor (Kristi Kidd) as a purported expert, and mentions in passing one other individual and an entity (Teresa Warner and Central Virginia Family Physicians, respectively). (Dkt. 70). It is not clear whether Jordan was also disclosing them as potential witnesses. Generally, the expert's testimony relates to Jordan's miscarriage that was allegedly caused by the harassment. (Id.). StoneMor then moved to strike this disclosure as tardy and irrelevant. (Dkt. 74). Then, for the first time at the hearing on these motions, Jordan argued that she was offering the doctor only as a fact witness (even though her belated disclosure of the treating doctor was as an expert under ¶ 19 of the pretrial order, (dkt. 11)).

         In any event, Jordan's belated disclosure of her treating physician as a witness requires that the doctor's testimony be excluded. As relevant here, the pretrial order states:

With respect to expert witnesses who are not retained or specially employed to provide expert testimony or whose duties as an employee of the party do not regularly involve giving expert testimony, such as a treating physician or clinician, the plaintiff must disclose the identity of any such witness and provide a summary of all opinions the witness will render and the basis therefore not later than 75 days from the date of this order, and the defendant must disclose the identity of any such witness and provide a summary of all opinions the witness will render and the basis therefore not later than 90 days from the date of this order.

(Dkt. 11, ¶19) (emphasis added). The pretrial order required Jordan to make particular disclosures about her treating physician if she wishes her to testify. And even if it did not, “a party seeking to introduce treating physician testimony should generally comply with Rule 26(a)(2)(C).” Kristensen ex rel. Kristensen v. Spotnitz, Case No. 3:09-cv-00084, 2011 WL 5320686, at *1 (W.D. Va. June 3, 2011). Jordan's disclosure was late even under this more generous background rule. The pretrial order was issued on September 30, 2016. (Dkt. 11).Jordan was required to disclose any treating physician that she expected to testify and provide a summary of the expert's opinions by December 14, 2016. Jordan did not disclose her treating physician until over a year later, on December 26, 2017. This disclosure was after the close of discovery, and so StoneMor was unable to depose the treating physician.

         Fed. R. Civ. P. 37(c)(1) anticipates this sort of tardiness; it provides that “[i]f a party fails to provide information or identify a witness[, ] . . . the party is not allowed to use that information or witness to supply evidence[, ] . . . unless the failure was substantially justified or is harmless.” See also Wilkins v. Montgomery, 751 F.3d 214, 220, 223 (4th Cir. 2014). Rule 37(c)(1) continues by giving courts the authority to order lesser penalties (e.g. forcing the party to pay fees caused by the delay). The Fourth Circuit has provided five factors for district courts to consider when exercising this discretion: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence.” Russell v. Absolute Collection Servs., Inc., 763 F.3d 385 (4th Cir. 2014). “The burden of establishing these factors lies with the nondisclosing party.” Wilkins, 751 F.3d at 222.

         Taken together, these factors demonstrate that the testimony of the treating physician must be excluded. Jordan does not even attempt to carry her burden under these factors because she wrongly assigns that burden to StoneMor. (Dkt. 80 at ECF 2-3). This alone provides reason to rule against her. Still, I consider the factors, and find that they cut strongly against Jordan's position. StoneMor's surprise and ability to cure are both directly related to the fact that discovery has already closed, and so StoneMor cannot depose Jordan's experts. To the extent the Court allowed StoneMor to depose the physician, it would delay trial, implicating the third factor. Admittedly, this evidence is important-without it Jordan will not be able to causally connect her miscarriage to her work-related stress. Still, Jordan has provided no explanation for her failure to disclose the evidence. Considering these factors together, and the fact that Jordan did not attempt to carry her burden under them, I will exclude Jordan's expert testimony.

         B. Jordan's Motion to Exclude StoneMor's Expert Testimony

         After StoneMor moved to exclude Jordan's expert testimony, Jordan belatedly responded by moving to exclude StoneMor's expert testimony. (Dkt. 69).[4] StoneMor's expert would testify about whether Jordan's miscarriage was caused by stress. (Dkt. 69-1). Jordan argues (1) StoneMor's disclosure of the expert was untimely and (2) the expert is unqualified. (Dkt. 69). Jordan's argument that StoneMor's expert disclosure was untimely fails because the Court granted StoneMor's request for an extension of time to file its expert disclosure. (Dkt. 43).

         Jordan's second argument is that StoneMor's expert is not qualified to testify about miscarriages under Fed.R.Evid. 702 and Daubert. (Dkt. 69 at ECF 2-3). An expert qualified “by knowledge, skill, experience, training, or education, may testify” as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. Fed.R.Evid. 702. Such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data, ” (2) “the testimony is the product of reliable principles and methods, ” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” Id. “[A] court may consider whether the expert witness theory or technique: (1) can be or has been tested; (2) has been subjected to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017) (citation and internal quotation marks omitted); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). This list of factors is not exhaustive. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

         Jordan never took the expert's deposition, and so her attacks on the expert's knowledge about miscarriages all grow out of the expert's resume. (Dkt. 75 at ECF 4). This resume, however, demonstrates that the expert is eminently qualified to testify about miscarriages. The expert has spent his career practicing in gynecology and has had six academic appointments at Brown University, the National Institute of Health, and George Washington University Medical School. (Dkt. 75 at ECF 5). While much of this experience is broader than the specific question concerning miscarriages, the expert's education and experience help him clear the Daubert threshold. See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017). I will deny Jordan's motion to exclude StoneMor's expert. Furthermore, because I will exclude Jordan's expert, StoneMor will be entitled to summary judgment on damages related to the miscarriage, as described below, and will likely not seek to admit its expert's testimony in any event.

         III. Cross-Motions for Summary Judgment

         StoneMor moves for summary judgment on all claims, and Jordan moves for summary judgment on all claims but the sex discrimination claim.[5] I will grant StoneMor's motion on all claims except Jordan's claim for a hostile work environment. I will also deny Jordan' motion for summary judgment on that claim. The other claims fail because StoneMor fired Jordan for a legitimate reason.

         A. Legal Standard

         Federal Rule of Civil Procedure 56(a) provides that a court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The dispute about a material fact must be “genuine.” Id. A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. But in order to for a jury to rely on the evidence, and therefore for the evidence to preclude summary judgment, the evidence of the disputed fact must be admissible. Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 216 (4th Cir. 2016). A court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). When, as here, there are cross-motions for summary judgment, a court must “consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Defs. of Wildlife v. N. Carolina Dep't of Transp., 762 F.3d 374, 392 (4th Cir. 2014). So when evaluating StoneMor's motion for summary judgment, I will view all facts in the light most favorable to Jordan; when evaluating Jordan's motion for summary judgment, I will view all facts in the light most favorable to StoneMor. Defs. Of Wildlife v. N. Carolina Dep't of Transp., 762 F.3d 374, 392 (4th Cir. 2014). Finally, “[t]he responsibility to comb through the record in search of facts relevant to summary judgment falls on the parties-not the court.” Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017).

         B. Evidentiary disputes

         In ruling on the motions for summary judgment, I may only consider evidence that would be admissible at a trial. Guessous, 828 F.3d at 216. StoneMor argues that some of the evidence cited is inadmissible. Most of its arguments fail, but I work through them before recounting the admissible evidence in the light most favorable to Jordan.

         First, StoneMor claims that Jordan should not be able to rely on facts supported by exhibits that were not uploaded correctly with Jordan's motion for summary judgment. (Dkt. 78 at ECF 6). Jordan later produced some of the corrected exhibits in her reply briefing; these exhibits included her complete deposition, (dkt. 84-3), various incidents and reports related to Anita Deeb, (dkt. 84-1), and various letters that StoneMor sent to Jordan, (dkt. 84-2). “[W]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the non-movant an opportunity to respond.” S.E.C. v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1087 n.9 (9th Cir. 2010) (citation omitted). However, StoneMor relied upon Jordan's deposition throughout these motions; it had access to the pages Jordan cited in her motion. There is no reason for the Court to blind itself to those parts of the deposition that Jordan cited, but did not provide. Likewise, I will consider the citations to the various incident reports and letters that StoneMor sent to Jordan, to the extent they are otherwise admissible. StoneMor produced these documents to Jordan and was certainly aware of their content.[6]

         Second, StoneMor argues that certain emails and letters from a former StoneMor employee are inadmissible hearsay. (Dkt. 78 at ECF 7). These letters support Jordan's testimony and provide more details about the problematic work environment her supervisor created. Jordan argues that these letters were kept as StoneMor's business records. (Dkt. 84 at ECF 3-4). “For a record to be admitted as a business record, it must be (1) made by a regularly conducted business activity, (2) kept in the ‘regular course' of that business, (3) the regular practice of that business to make the memorandum, (4) and made by a person with knowledge or from information transmitted by a person with knowledge.” United States v. Cone, 714 F.3d 197, 219 (4th Cir. 2013) (internal citations and quotation marks omitted). “While properly authenticated e-mails may be admitted into evidence under the business records exception, it would be insufficient to survive a hearsay challenge simply to say that since a business keeps and receives e-mails, then ergo all those e-mails are business records falling within the ambit of Rule 803(6)(B).” Id. at 220. Here, the emails and letters do not fall under the business record exception because they were not generated by StoneMor and they were not part of a regularly conducted activity or kept in the regular course of business. See Fed. R. Evid. 803(6)(B)). Nonetheless, the letters are admissible for the limited purpose of displaying StoneMor's knowledge of employee complaints about Deeb's behavior. See Fed. R. Evid. 801(c)(2). This is particularly relevant to the claims for punitive damage that are based on StoneMor's knowledge of Deeb's behavior and failure to respond.

         Third and finally, StoneMor argues that the Court should not consider two affidavits filed by Jordan's former co-workers. (Dkt. 78 at ECF 8-11). While these two co-workers were disclosed as potential witnesses, Jordan never provided StoneMor their addresses or phone numbers as required by Fed.R.Civ.P. 26(a). StoneMor asks that the Court refuse to consider the affidavits because Jordan never supplemented her disclosures, as she was required to under Fed.R.Civ.P. 26(e). StoneMor alternatively argues that the affidavits are irrelevant.

         Very little in these affidavits has any relevance. Ryan Hunter's affidavit, (dkt. 68-3), does not mention Jordan at all or whether she was a witness to or aware of any of the conduct he experienced. At this stage, his testimony is relevant only to the extent that it establishes StoneMor's knowledge of Deeb's conduct, but not otherwise.[7] Similarly, Terrell Miller's affidavit, (dkt. 68-2), mentions Jordan only twice: it notes that Deeb used the n-word in Jordan's presence and that he was aware Jordan complained to StoneMor about this. (Id. at ECF 2). These two facts are relevant, but they merely corroborate Jordan's deposition. But to the extent that these affidavits testify to interactions with Deeb that are not connected to Jordan (e.g. Deeb revealing herself to Hunter and other men), I do not consider these irrelevant portions. When limited to the relevant portions, the admission of these affidavits is harmless at this stage because the affidavits merely reiterate Jordan's deposition testimony. Accordingly, while I will not exclude them, I also will only consider them to the extent they are connected to Jordan or demonstrate StoneMor's knowledge of Deeb's conduct.

         C. Facts[8]

         StoneMor is a company that owns cemeteries and funeral homes. (Dkt. 68-14 at ECF 4). Jordan, a heterosexual African-American female, was employed by StoneMor from early 2011 until January 26, 2015. (Dkt. 66-2 at ECF 12-13, 64, 104; dkt. 66-3 at ECF 1). She initially worked as a family services counselor at cemetery called Fort Hill Memorial Park. (Dkt. 66-3 at ECF 1). In this role, Jordan sold cemetery plots and services to customers. In order to do so, she obtained a Virginia Cemetery Sales License. (Dkt. 66-3). However, discovery revealed that she did not disclose a misdemeanor conviction in her application for this license. (Id.). Otherwise, Jordan appears to have been a good employee: StoneMor sent her congratulatory letters for her sales success and she frequently received performance-based bonuses. (Dkt. 84-2). By the end of her time at StoneMor, she had become an assistant manager of the Fort Hill cemetery and was earning $130, 000 a year. (Dkt. 66-2 at ECF 114).

         Anita Deeb, a white female, worked as StoneMor's area manager at the Fort Hill Memorial Park. (Dkt. 66-2 at ECF 52). In this role, she was Jordan's supervisor. Deeb's conduct provides the basis for Jordan's discrimination claims. Deeb frequently used the n-word at work, and occasionally directed this language at Jordan. (Dkt. 84-3 at ECF 109-116, 337).[9]Deeb also told employees at Fort Hill that African-American customers could not be buried in certain parts of the cemetery because these parts of the cemetery were reserved for white customers. (Id. at ECF 187). Deeb referred to this part of the cemetery as “Section Eight, ” an allusion to the subsidized housing complexes. (Id.). ...

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