# Kughn v. Stonemor Partners LP

> District Court, N.D. Alabama · March 25, 2022

URL: https://www.frixlaw.com/law-library/cases/9991004

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991004

## How later opinions describe it (automated extraction)

- holding McDonnell Douglas framework is not sine qua none for plaintiff to survive summary judgment but, rather, triable issue of fact exists if plaintiff presents convincing mosaic of circumstantial evidence that allows inference of intentional discrimination
- noting Eleventh Circuit has held documents stating “‘Fire Early – he is too old’” and “‘Fire Rollins – she is too old’” constitute direct evidence of discrimination

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARRY J. KUGHN, )
)
Plaintiff, )
)
v. ) Case No. 2:21-cv-00797-SGC
)
STONEMOR PARTNERS, L.P., )
)
Defendant. )

MEMORANDUM OPINION1
The plaintiff, Barry Kughn, filed this employment discrimination action under
42 U.S.C. § 1981,2 naming StoneMor Partners, L.P., as the sole defendant. (Doc. 1
at 1).3 StoneMor moved to dismiss Kughn’s complaint for failure to state a claim
upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. 8). The motion is fully briefed and ripe for adjudication. (Docs.
15, 19). For the reasons discussed below, StoneMor’s motion is due to be denied.

1 The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 17).
2 Kughn’s complaint also refers once to Title VII, 28 U.S.C. § 2000e et seq; however, the substance
of Kughn’s complaint addresses only § 1981. Also, Kughn does not allege he exhausted his
administrative remedies, and he refers to the four-year statute of limitations applicable to § 1981.
Consequently, it does not appear Kughn states any claims under Title VII.
3 Citations to the record refer to the document and page numbers assigned by the court’s CM/ECF
electronic document system and appear in the following format: (Doc. __ at __).
I. Allegations of Kughn’s Complaint
Kughn, a White male, began working for StoneMor in October 2010. (Doc. 1

at 2). Kughn was soon promoted to a managerial position, which he performed well.
(Doc. 1 at 2).
In October 2018, a subordinate mortician, Jennifer Floyd, a Black female,

became insubordinate and had performance issues. (Doc. 1 at 2). Kughn and District
Manager Robert Shoemaker, to whom Kughn reported, counseled Floyd on several
occasions. (Doc. 1 at 2). At some point, Floyd claimed Kughn discriminated against
and harassed her. (Doc. 1 at 2).

Kughn reported to Shoemaker that Floyd was harassing other employees
based on their race. (Doc. 1 at 2). Shoemaker instructed Kughn to discipline Floyd
and to instruct employees to contact HR to complain about Floyd, which they did.

(Doc. 1 at 2-3).
In the summer of 2019, Shoemaker placed Kughn on a performance
improvement plan. (Doc. 1 at 3). At the same time, Kughn prepared a performance
improvement plan for Floyd, as instructed by Shoemaker. (Doc. 1 at 3).

In July 2019, James Johnson, a White male, reported to Kughn and Shoemaker
that Floyd was discriminating against and harassing him, and he discussed filing
EEOC charges against her. (Doc. 1 at 3). Shoemaker requested Johnson not file
charges against Floyd but, instead, allow Shoemaker and Kughn to handle the issue.
(Doc. 1 at 3). Shoemaker did not address this situation with Floyd. (Doc. 1 at 3).

A month later, Shoemaker terminated Kughn because of his harassment of
Floyd and because employees were complaining to HR about Floyd, even though
Shoemaker had requested employees submit their complaints about Floyd to HR.

(Doc. 1 at 3). Floyd remained employed with StoneMor. (Doc. 1 at 3).
Kughn filed this lawsuit on June 11, 2021, asserting he was terminated in
violation of § 1981’s prohibition against race discrimination and retaliation. (Doc.
1). Kughn claims he was treated differently than Floyd, who was similarly situated

to him, because of his race. (Doc. 1 at 4). Floyd engaged in similar or worse conduct
than Kughn but was not terminated. (Doc. 1 at 4). Kughn also alleges he was fired
in retaliation for his complaints to Shoemaker about Floyd’s race discrimination and

harassment. (Doc. 1 at 5).
II. Standard of Review
In considering a motion to dismiss, the court must accept the plaintiff’s
allegations as true and construe them in a light most favorable to the plaintiff. Butler

v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012). Rule 12(b)(6)
must be considered against the backdrop of Rule 8(a)(2), which “requires only ‘a
short and plain statement of the claim showing that the pleader is entitled to relief,’

in order to ‘give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the defendant-unlawfully-
harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (quoting
Twombly, 550 U.S. at 555). “[L]abels and conclusions,” “a formulaic recitation of

the elements of a cause of action,” and “naked assertion[s] devoid of further factual
enhancement” are insufficient. Id. at 678 (quoting Twombly, 550 U.S. at 555, 557)
(internal quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

At the pleading stage of an employment case, a plaintiff asserting a disparate
treatment claim involving tangible employment actions is not required to allege facts
sufficient to make out a prima facie case under the McDonnell Douglas framework.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–15 (2002).4 Nonetheless, he must
satisfy the pleading standard articulated by Twombly and Iqbal, which requires him

to allege enough facts, accepted as true, to suggest intentional race discrimination.
Davis, 516 F.3d at 974.
III. Discussion

StoneMor moves to dismiss both counts of Kughn’s complaint under Rule
12(b)(6). First, StoneMor argues Kughn has failed to state a claim for race
discrimination because he has not alleged a proper comparator under the McDonnell
Douglas burden shifting framework. Second, StoneMor argues Kughn has failed to

plausibly suggest he was terminated in retaliation for reporting Floyd’s
discriminatory and harassing conduct for two reasons—Kughn’s report of Floyd’s
behavior does not qualify as a protected activity, and Kughn has not suggested a

causal connection between his report of Floyd’s behavior and his termination.
A. Race discrimination
Section 1981 prohibits race-based employment discrimination, as well as
retaliation for opposing or participating in an investigation of race-based

4 Swierkiewicz’s holding that the prima facie case is not a pleading standard has been recognized
by the Eleventh Circuit even though it was based on an older pleading standard. See McCone v.
Pitney Bowes, Inc., 582 F. App’x 798, 801 n.4 (11th Cir. 2014) (“We note that Twombly effectively
overruled Swierkiewicz when it rejected the old standard for dismissal set out in Conley v. Gibson,
355 U.S. 41[ ] (1957)). But this had no impact on Swierkiewicz’s statement that a plaintiff is not
required to plead a prima facie case of discrimination in order to survive dismissal.”)
employment discrimination. Milton v. Milligan, 2013 WL 828591, at *1 (N.D. Fla.
Mar. 5, 2013) (noting § 1981 explicitly prohibits race-based employment

discrimination and implicitly prohibits retaliation for asserting rights under the
statute). Although Kughn brings his complaint under § 1981, the Eleventh Circuit
“has routinely and systematically grouped Title VII and § 1981 claims for analytic

purposes.” Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir. 2010);
Melton v. Nat’l Dairy LLC, 705 F. Supp. 2d 1303, 1315 (M.D. Ala. 2010) (using
Title VII cases and § 1981 cases interchangeably).
There are two theories of intentional discrimination in the employment

context: disparate treatment discrimination and pattern or practice discrimination.5
Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1322 (11th Cir. 2006). Disparate
treatment discrimination claims come in two types: (1) those involving tangible

employment actions, such as discipline or termination, and (2) those based on a
hostile work environment that alters the terms and conditions of employment, even
though the employee does not suffer a tangible employment action. Reeves v. C.H.
Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010). The court construes

5 The Eleventh Circuit has indicated claims of pattern or practice discrimination are generally
brought either by the EEOC or a class of private plaintiffs. See E.E.O.C. v. Joe’s Stone Crab, Inc.,
220 F.3d 1263, 1286 (11th Cir. 2000). Therefore, to the extent Kughn asserts a pattern and practice
discrimination claim, it fails because the EEOC has not joined this action and Kughn is not
proceeding on behalf of a class of plaintiffs. See Skelton v. Birmingham Airport Auth., No. 2:18-
cv-012040-AKK, 2018 WL 6523172, at *2 n.1 (N.D. Ala. Dec. 12, 2018) (dismissing pattern and
practice discrimination claim asserted by individual plaintiff); Banks v. Ackerman Sec. Sys., Inc.,
No. 109CV0229CC, 2009 WL 974242, at *3 (N.D. Ga. Apr. 10, 2009) (same).
Count I of the complaint—in which Kughn asserts his termination is race
discrimination—as asserting a disparate treatment claim involving tangible

employment actions.
Where, as here, a plaintiff attempts to establish a disparate treatment claim
involving tangible employment actions with circumstantial evidence of

discrimination, a court typically uses the burden-shifting framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
evaluate the claim. Burke-Fowler, 447 F.3d at 1323; see also Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (holding McDonnell Douglas

framework is not sine qua none for plaintiff to survive summary judgment but,
rather, triable issue of fact exists if plaintiff presents convincing mosaic of
circumstantial evidence that allows inference of intentional discrimination).6 Under

this framework, a plaintiff establishes a prima facie case by showing (1) he belongs
to a protected class, (2) he was subjected to an adverse employment action, (3) his

6 A plaintiff may also establish a disparate treatment claim with direct evidence of discrimination.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). “[O]nly the most blatant
remarks, whose intent could mean nothing other than to discriminate on the basis of some
impermissible factor constitute direct evidence of discrimination.” Id. at 1086 (internal quotation
marks omitted). Kughn alleges no statement or conduct that constitutes direct evidence of race-
based discrimination. Compare Dixon v. The Hallmark Cos., Inc., 627 F.3d 849, 855 (11th Cir.
2010) (noting Eleventh Circuit has held documents stating “‘Fire Early – he is too old’” and “‘Fire
Rollins – she is too old’” constitute direct evidence of discrimination), with Tomczyk v. Jocks &
Jills Rests., LLC, 198 F. App’x 804, 810 (11th Cir. 2006) (holding use of racially derogatory
comments not directly linked to decision to terminate plaintiff served as circumstantial evidence
of discrimination at best).
employer treated similarly situated employees outside his class more favorably, and
(4) he was qualified to do the job. Burke-Fowler, 447 F.3d at 1323.7

Here, the parties dispute whether Kughn has plausibly alleged Floyd is a
similarly situated comparator. Kughn asserts both he and Floyd were the subjects of
harassment and discrimination complaints, but he was fired, and Floyd was not.

StoneMor believes Floyd is not a proper comparator because she was not “similarly
situated in all material respects” to Kughn, as required by the Eleventh Circuit’s
opinion in Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019).
(Doc. 8 at 6).

In Lewis, the court clarified that a proper comparator should be “similarly
situated in all material respects” to the plaintiff. Id. at 1227. This does not require
the plaintiff and his comparator to be identical except for race or gender, nor must

they have the same job title. Id. (citing Lathem v. Dep’t of Child. & Youth Servs.,
172 F.3d 786, 793 (11th Cir. 1999) (“The relevant inquiry is not whether the
employees hold the same job titles, but whether the employer subjected them to
different employment policies.”)) Instead, a similarly situated comparator and the

plaintiff will ordinarily (1) have engaged in the same basic conduct/misconduct; (2)
have been subject to the same employment policy, guideline, or rule; (3) ordinarily

7 The burden then shifts to the defendant to show a legitimate, non-discriminatory reason for its
employment action. Burke-Fowler, 447 F.3d at 1323. If the defendant makes this showing, the
burden shifts back to the plaintiff to prove the reason is pretext for unlawful discrimination. Id.
(although not always) have been under the jurisdiction of the same supervisor; and
(4) share a similar employment or disciplinary history. Id. at 1227-28. The court

chose the “all-material-respects standard [because it] serves the interest of sound
judicial administration by allowing for summary judgment in appropriate cases–
namely, where the comparators are simply too dissimilar to permit a valid inference

that invidious discrimination is afoot.” Id. at 1229.
In support of its improper comparator argument, StoneMor primarily relies on
Gilliam v. U.S. Dep’t of Veterans Affs., 822 F. App’x 985 (11th Cir. 2020).8 There,
the Eleventh Circuit affirmed the district court’s Rule 12(b)(6) dismissal of the

plaintiff’s complaint because, among other reasons, the plaintiff had not identified a
valid comparator. Id. at 991. The plaintiff, a police officer at an outpatient clinic, had
engaged in a romantic relationship with a medical support assistant at the clinic. Id.

at 987. The plaintiff believed his supervisor disapproved of this relationship and
began a campaign of harassment designed to build a “paper trail” so he could fire
the plaintiff. Id. The plaintiff was disciplined for multiple incidents involving his

8 StoneMor also cites two of this court’s prior opinions, both of which are distinguishable from the
facts alleged in this case. In Henderson v. City of Birmingham, the plaintiff identified other
similarly situated employees but alleged no facts suggesting how they were similar. No. 2:18-cv-
2062; 2020 WL 230977 at *5 (N.D. Ala. Jan. 15, 2020). The plaintiff did give some detail for one
alleged comparator for conduct which resulted in a letter of counseling, but the letter of counseling
was not an adverse employment action. Id. Likewise, in Hamby v. City of Birmingham, the plaintiff
did not identify alleged comparators for most of the allegedly adverse employment actions. No.
2:18-cv-01216-SGC, 2019 WL 6327720 at *6 (N.D. Ala. Nov. 26, 2019). The plaintiff did identify
specific comparators for conduct which resulted in a one-day suspension; however, that one-day
suspension did not rise to the level of an adverse employment action. Id.
workplace contact with the medical assistant, but he was also charged with other
misconduct, including assaulting a superior, disobeying a police officer, and

engaging in conduct unbecoming a police officer. Id. Ultimately, the plaintiff was
terminated, but the medical assistant was not. In evaluating the plaintiff’s claim, the
court held that a police officer and medical support assistant were not proper

comparators. Id. at 991. First, they held different jobs that might reasonably be held
to different standards. Id. Second, the plaintiff was charged with several acts of
misconduct not related to the medical assistant. Id. Finally, the plaintiff also worked
in a different department, with different supervisors, and a different disciplinary

decisionmaker. Id.
StoneMor claims Kughn and Floyd “have nothing in common” and points to
four differences between them: (1) they had different supervisors (Kughn reported

to Shoemaker, and Floyd reported to Kughn); (2) they had different jobs (Kughn was
a manager, and Floyd was a mortician); (3) they had different levels of authority
(Kughn could discipline Floyd, but Floyd had no disciplinary authority); and (4) they
were accused of different misconduct (Kughn was accused of harassing Floyd, a

direct report, but Floyd was accused of harassing other employees, not direct
reports). (Doc. 8 at 7-8). In response, Kughn argues he and Floyd were similarly
situated in all material respects except for race. (Doc. 15 at 9). They were both

supervised by and had their discipline controlled by Shoemaker; they were both
accused of harassment and discrimination; and they were both subject to a
performance improvement plan at Shoemaker’s direction. (Doc. 15 at 9).

In considering the parties’ arguments, the court is mindful of two things. First,
Kughn’s allegations must be accepted as true and construed in the light most
favorable to him. Butler, 685 F.3d at 1265. Second, Kughn is not required to plead

facts sufficient to meet a prima facie case under McDonnell Douglas. Davis, 516
F.3d at 974. Viewed through this lens, Kughn and Floyd are certainly not identical,
but they are more similarly situated than the individuals in Gilliam. First, paragraphs
9 and 10 of Kughn’s complaint imply Shoemaker directed discipline for both Kughn

and Floyd, so Kughn has alleged both he and Floyd were under Shoemaker’s
jurisdiction. See Lewis, 918 F.3d at 1227. Kughn claims both he and Floyd were
placed on performance improvement plans, so he has alleged they share similar

disciplinary histories. And while not explicit, the complaint implies Kughn and
Floyd worked in the same general area of StoneMor.
Whether Kughn has alleged he and Floyd engaged in the same misconduct is
a closer call. Discrimination and harassment claims were made against both Kughn

and Floyd, but StoneMor argues that allegations of harassing and discriminating a
direct report are different from harassing and discriminating a non-subordinate. This
is a fair distinction, but Lewis states a plaintiff and his comparator “will have

engaged in the same basic conduct (or misconduct).” Id. (emphasis added). The
court in Lewis cited Mitchell v. Toledo Hosp., 964 F.2d 577, 580, 583 (6th Cir. 1992),
which held that a plaintiff terminated for misusing an employer’s property could not

rely on a comparator who was absent and insubordinate. See also Gilliam, 822 F.
App’x at 991 (a plaintiff terminated for assaulting a superior and engaging in conduct
unbecoming a police officer could not rely on a comparator charged with engaging

in a romantic relationship with a co-worker). Kughn’s and Floyd’s offending
conduct may ultimately prove to be too different under the all-material-respects
standard. But without the benefit of a factually developed record, the court cannot
resolve this question in StoneMor’s favor at this point. Kughn has sufficiently

suggested Floyd is a proper comparator to survive a motion to dismiss for failure to
state a claim. Therefore, StoneMor’s motion to dismiss Count I of Kughn’s
complaint for § 1981 discrimination is DENIED.

B. Retaliation
Absent direct evidence, courts also use the McDonnell Douglas burden-
shifting framework to analyze retaliation claims. Brown v. Ala. Dep’t of Transp.,
597 F.3d 1160, 1181 (11th Cir. 2010). Under this framework, a plaintiff establishes

a prima facie case of retaliation by showing (1) he engaged in a protected activity,
such as reporting harassment or other discrimination based on a protected
characteristic, (2) he suffered an adverse employment action, and (3) there was a

causal connection between the protected activity and the adverse employment
action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Retaliation under
§ 1981 “includes retaliation for a plaintiff’s opposition to race discrimination,

whether or not he personally is the victim of race discrimination.” Tucker v.
Talladega City Sch., 171 F. App’x 289, 295 (11th Cir. 2006). As with a disparate
treatment claim, a plaintiff need not allege facts at the pleading stage sufficient to

make out a prima facie case of retaliation under the McDonnell Douglas framework,
but he must allege enough facts to suggest discriminatory retaliation. Marshall v.
Mayor & Alderman of City of Savannah, Ga., 366 F. App’x 91, 100 (11th Cir. 2010)
(citing Davis, 516 F.3d at 974).

1. Protected activity
First, StoneMor argues Kughn’s complaint should be dismissed because he
does not allege facts sufficiently suggesting he engaged in a protected activity.

StoneMor cites Milner v. Team Health to support its claim that Kughn has not
sufficiently alleged Floyd’s conduct rose to the level of race discrimination, and thus
Kughn has not established he was opposing discrimination when he reported Floyd
to Shoemaker. No. 2:19-cv-2041-GMB, 2020 WL 5658903 (N.D. Ala. Sept. 23,

2020). In Milner, the plaintiff alleged specific conduct that, even if true, did not
amount to discrimination. Id. at *8. The plaintiff had also amended his complaint
three times. Id. at *3. Here, StoneMor objects to Kughn’s general description of
Floyd’s conduct rather than arguing Floyd’s conduct did not amount to race
discrimination.

StoneMor also contends Kughn’s report of Floyd’s behavior is not a protected
activity because it is covered by the manager rule, which “holds that a management
employee, that, in the course of her normal job performance, disagrees with or

opposes the actions of an employer does not engage in ‘protected activity.’” Brush
v. Sears Holdings Corp., 466 F. App’x 781, 787 (11th Cir. 2012). But both cases
StoneMor cites involved a plaintiff employee whose job function included handling
human resources issues, and both cases were decided on summary judgment. Id. at

784 (plaintiff was a loss prevention coach who was assigned responsibility for
investigating another employee’s sexual harassment claim); Fletcher v. Supreme
Beverage Co., No. 2:11-cv-00056-MHH, 2014 WL 5518294 (N.D. Ala. Oct. 31,

2014) (plaintiff was a human resources manager whose job responsibility included
reporting employee claims of discrimination and harassment to upper management).
At least in some circumstances, a manager-plaintiff can pursue a § 1981 retaliation
claim, even where the underlying discriminatory conduct is directed at others. See,

e.g., CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) (plaintiff was an assistant
manager who complained a fellow assistant manager fired another employee for
race-based reasons).
Again, the court must accept Kughn’s allegations as true and view them in a
light most favorable to him. Viewed in that light, Kughn’s report to Shoemaker that

Floyd was “harassing other employees because of their race” is not simply passing
along complaints, particularly given Kughn’s complaint suggests he was not a
human resources employee. With the benefit of a full record, StoneMor’s arguments

may well have merit; for now, though, Kughn’s reports to Shoemaker could qualify
as protected activity.
2. Causal connection
StoneMor also argues Kughn has not shown a causal connection between his

complaints about Floyd and his termination. To do so, Kughn must show decision-
makers were aware of the activities and the activities and subsequent adverse
employment actions were not “wholly unrelated.” See Shannon v. Bellsouth

Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (internal quotation marks
omitted). “Close temporal proximity” may be sufficient to show a protected activity
and an adverse employment action were not “wholly unrelated.” Gupta v. Fla. Bd.
of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (internal quotation marks omitted).

However, temporal proximity, without more, must be “very close.” Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (internal quotation
marks omitted). When three or more months elapse between a protected activity and
an adverse employment action, the temporal proximity of the events is not “very
close.” Id.

In his response to StoneMor’s motion, Kughn claims he complained about
Floyd to Shoemaker as late as June/July 2019, but his complaint is not so clear.
Kughn alleges Johnson complained about Floyd to both Shoemaker and Kughn in

July 2019, but that is the only definitive date regarding the complaints about Floyd.
(Doc. 1 at 3). Without some allegation as to when Kughn complained about Floyd
to Shoemaker, the complaint does not provide a temporal-based causal connection
between Kughn’s complaints and his termination.

However, Kughn alleges he was told he was being terminated because
employees complained about Floyd to HR. (Doc. 1 at 3). Taken as true, this could
suggest a causal connection between Kughn’s complaint about Floyd and his

termination. Kughn claims Shoemaker instructed him to have employees complain
directly to HR. If Kughn were then fired because the employees complained to HR,
as he claims, that suggests Kughn’s opposition to Floyd’s alleged race discrimination
and Kughn’s termination are not “wholly unrelated.” Kughn has sufficiently

suggested he was terminated in retaliation for reporting Floyd’s race-based
discriminatory conduct. Consequently, StoneMor’s motion to dismiss Count II of
Kughn’s complaint for § 1981 retaliation is DENIED.
IV. Conclusion
For the foregoing reasons, StoneMor’s motion to dismiss (Doc. 8) is
DENIED. The parties had requested a stay of the discovery deadlines pending
resolution of StoneMor’s motion to dismiss, which the court granted. (Doc. 23).
Accordingly, the stay is lifted, and the parties are ORDERED to meet and confer,
within fourteen (14) calendar days of the date of entry of this Order, to propose new
deadlines for discovery and dispositive motions. The parties should file a report of
their planning meeting with twenty-one (21) calendar days of the date of entry of
this Order.
DONE this 25th day of March, 2022.

STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991004. Public record. Not legal advice.