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Prokop v. Stonemor Partners LP

November 9, 2009


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

Judge Ronald A. Guzman


Plaintiff Lynn Prokop has sued defendants StoneMor Partners LP ("StoneMor") and Jason Wilson, a StoneMor employee, for violations of Title VII of the Civil Rights Act of 1964, the Indiana Civil Rights Law, and Indiana common law. Plaintiff principally alleges that StoneMor sexually harassed her through its employee, Jason Wilson, while she was employed at StoneMor's cemetery in Indiana. Plaintiff further alleges that StoneMor retaliated against her for filing a report of sexual harassment by transferring her to a less desirable position at a cemetery in Illinois. StoneMor has moved to transfer venue to the Northern District of Indiana. For the reasons set forth herein, StoneMor's motion is DENIED [dkt 12].


The following facts are taken from plaintiff's First Amended Complaint for Monetary Damages ("Complaint"). The Complaint contains 10 counts. Counts one through four allege that StoneMor violated Title VII of the Civil Rights Act of 1964*fn1 by engaging in a hostile work environment, sexual harassment, quid pro quo, and retaliation. Counts five through nine allege that StoneMor committed the Indiana common law torts of false imprisonment, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. The tenth count alleges that StoneMor violated the Indiana Civil Rights Law*fn2 by engaging in sexual harassment and retaliation.

StoneMor is a Pennsylvania company that operates cemeteries and funeral homes in 29 states, including Illinois and Indiana. StoneMor hired plaintiff in March 2008 to work at Cavalry Cemetery and Crematory ("Cavalry"), located in Portage, Indiana. Plaintiff is, however, a Chicago, Illinois resident. Plaintiff alleges that immediately upon starting work at Cavalry, she became the object of unwelcome sexual advances by her supervisor, Jason Wilson ("Wilson"). In May 2008, Wilson allegedly confined plaintiff in the cemetery and attempted to engage her in a game of strip tease. During the incident, Wilson allegedly touched plaintiff's left breast. In her Complaint, plaintiff lists several other instances of inappropriate conduct by Wilson during her eight-month employment at Cavalry, including inappropriate sexual touching, sexually explicit comments, and sexually explicit text messages sent by him to her cell phone.

On August 27, 2008, plaintiff reported the harassment to StoneMor. StoneMor commenced an investigation and concluded that plaintiff would no longer report to Wilson. In September 2008, StoneMor transferred plaintiff to Woodlawn Memorial Park ("Woodlawn"), a cemetery located in Joliet, Illinois. According to plaintiff's Complaint, Woodlawn employs more sales associates than Cavalry, thus, plaintiff faced more competition for clients. Consequently, plaintiff's income dropped from $1,000 a week to $240 a week. Plantiff believes StoneMor transferred her to this "inferior position" in retaliation for her filing a report of sexual harassment. In addition, plaintiff alleges that she felt humiliated at work because her co-workers seemed to know the details of the alleged sexual harassment. Plaintiff contends that, as a result of defendants' actions, she developed Post Traumatic Stress Disorder ("PTSD"). In October 2008, plaintiff began attending weekly mental health sessions.

On February 17, 2009, plaintiff filed a complaint against StoneMor with the Equal Employment Opportunity Commission ("EEOC") in Indianapolis, Indiana. Also in February 2009, plaintiff asked for and received a leave of absence from StoneMor. However, plaintiff alleges that StoneMor declined to pay her salary or medical insurance premiums, in violation of the Family Medical Leave Act ("FMLA"),*fn3 as further retaliation for her filing a complaint of sexual discrimination with the EEOC. On July 20, 2009, plaintiff filed the instant action.


StoneMor has moved to transfer this case to the Northern District of Indiana on the grounds that the material events giving rise to plaintiff's cause of action occurred in Indiana, the fact witnesses are in Indiana, and the Northern District of Indiana has more familiarity with the applicable Indiana law. Plaintiff counters that venue is appropriate in Illinois because two of the three parties reside in Illinois and the witnesses to the material events reside primarily in Illinois. The Court finds that StoneMor has failed to carry its burden of showing that Indiana is clearly the more convenient forum.

As a preliminary matter, the Court must address plaintiff's timeliness objection. Plaintiff argues that StoneMor failed to file its motion to transfer in a timely manner. In support, plaintiff's counsel notes that he informed StoneMor of his intent to file a lawsuit in the Northern District of Illinois on March 30, 2009 and that StoneMor failed to inform him of its intent to transfer before filing the instant motion on September 22, 2009. Plaintiff concedes, however, that StoneMor was under no obligation to raise venue as an issue prior to the filing of a lawsuit. Although section 1404(a) does not address timeliness, courts have held that a party should act with reasonable promptness in moving to transfer venue.*fn4 The mere passage of time or a delay, however, is not alone sufficient to deny a motion to transfer where the moving party has acted in good faith.*fn5 StoneMor filed the instant motion 64 days after the commencement of this lawsuit. This is a reasonable amount of time in which to bring a motion to transfer.*fn6 Because there is no evidence of unreasonable delay here, there is no reason to consider the timeliness of StoneMor's motion to transfer venue in deciding whether a transfer is appropriate.

Turning to the merits of StoneMor's Motion to Transfer Venue, Title 28 of the United States Code Section 1404(a) permits a district court to transfer any civil action to any other district or division where it might have been brought for the convenience of the parties and witnesses and in the interest of justice. A transfer is appropriate under section 1404(a) when the following statutory elements are met: (1) venue is proper both in this court and in the transferee court; (2) the transferee court is more convenient for both the parties and the witnesses; and (3) a transfer would serve the interest of justice.*fn7 In ruling on a motion to transfer venue, the court must accept as true the well- pleaded facts contained in the plaintiff's complaint, unless they conflict with affidavits or other appropriate evidence submitted by the defendant.*fn8 The movant bears the burden of showing that the transferee court is clearly the more convenient court.*fn9


The threshold issue the Court must address is whether venue is proper in both the Northern District of Illinois and the Northern District of Indiana.*fn10 Under Title VII, venue is appropriate in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, or if the respondent is not found within any such district, in the judicial district in which the respondent has its principal office.*fn11 Plaintiff has alleged that StoneMor ...

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