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Editorial


Front Page - Friday, August 3, 2018

A win can be a loss when women are forced into court in the #MeToo era


How one woman’s ‘victory’ failed to make her whole



Andrea Herring was changing clothes in the restroom of the funeral home where she worked when her boss began knocking on the door. When she refused to let him in, he retrieved the key and opened it anyway.

As Herring did her best to conceal her nearly naked body, the man stood in the doorway, laughing. To him, it might have been a prank. To Herring, it was a moment of deep humiliation and an indignity that haunts her whenever she enters a similar restroom.

This incident took place in 2013, long before the #MeToo move-

ment entered the American zeitgeist and empowered victims of sexual harassment to step into the public spotlight and bare their souls.

In 2017, it seemed like each day brought a new story of a woman accusing a man of power and influence of abusing her. But four years earlier, there was no sense of shared trauma. For Herring, there was only herself and the man who would not leave her alone.

Even the company for which Herring worked – Service Corporation International, the largest death care company in the nation – failed to stand with her, a jury would later decide. Instead, it turned a blind eye to the behavior of the man it had placed in charge of one of its funeral homes, to the plight of his victim and to its legal obligations.

Herring did not remain alone, though. A beacon of hope entered her life in 2015 when Donna Mikel, a Chattanooga attorney, took her case and began the slow, uphill march to justice.

The outcome, rendered three years later, was designed to open even the blind eye of the corporation at the heart of the case.

Andrea Herring

The story of Andrea Herring v. SCI Tennessee Funeral Services begins with Herring, a married mother of two who was living in Las Vegas when she took a clerical job with SCI. Herring’s grandmother had just died, and during the arrangement conference at the funeral home one of the family counselors apologized for being short-staffed.

Herring had been caring for her grandmother full-time and was free to move on, so when an aunt suggested she work for the funeral home, which SCI owned, she pursued the idea. Herring was on her way to her grandmother’s burial service when the funeral home called and offered her the job.

A year later, when Herring and her family moved to Tennessee to be near relatives, she transferred to East Lawn Funeral Home in Kingsport, which SCI also owned. “I liked working for them,” she says.

After Herring had settled in, the manager at the time stoked her interest in the other aspects of the death care business, such as embalming and becoming a funeral home director. She says she was encouraged to take the classes that would open those doors.

Excited by the prospect of turning a job into a career, the bubbly and outgoing Herring became a family service counselor, where she translated her newfound passion for working with clients into strong sales figures, as evidence Mikel submitted in court would later reveal.

Other evidence would show the honeymoon glow of Herring’s budding career extended to her performance evaluations, which were stellar.

Herring was thrilled. “I loved everything about my job – the people, the environment, the things I was doing,” she says. “When I woke up, I was excited about going to work.”

In Herring’s mind, she was beginning a lifelong journey. She was going to climb the ladder at SCI and someday become a general manager. “My entire outlook on life was based on East Lawn Funeral Home,” she adds.

Then, a few months after Herring joined East Lawn’s sales team, someone began kicking the rungs of the ladder out from under her feet.

The details

After Herring was moved to the sales team, she began working more with East Lawn’s funeral director, Tim Stinnett.

By Herring’s account, Stinnett was a wellspring of vulgarity. He told obscene knock-knock jokes, gave graphic descriptions of body parts and discussed his sex life in detail. On one occasion, Stinnett showed Herring nude photos of a male college student with whom he claimed to have had sex. On another occasion, he described the extent of his weekend sexual activity.

At first, Herring says she tried to disregard the offensive comments. Stinnett would say something lewd, and she’d laugh it off or walk away. But the floodgates of indecency were open and would not close, so Herring eventually felt compelled to say something to him.

“He’d made a joke that crossed the line,” Herring recalls. “I told him I would appreciate him stopping, and he laughed and told me to quit being a pansy.”

Herring’s objection seemed to embolden her boss, who shifted the emphasis of his crude commentary to his subordinate she adds. At first, he made remarks about Herring’s clothes; then he suggested she join him on his sexual escapades. “Let the girls out to play,” he urged.

As Stinnett escalated his behavior, Herring went from loving her job to feeling uncomfortable at work. But even as she considered telling someone about what was happening, she saw an obstacle looming before her: Stinnett and the general manager of the funeral home, Susie Mozolic, were friends.

Later, posts and comments pulled from Stinnett’s Facebook page and presented in court as evidence would reveal the nature of their relationship. “What a cutie,” Mozolic wrote on one occasion after Stinnett updated his profile picture. “You had me with hello!”

Herring says she was afraid Mozolic and Stinnette’s bond would work against her if she complained to Mozolic, who was the only person who could discipline Stinnett. So, she told someone at a lower level of authority, her sales supervisor, Vickie Bryant, about what was happening.

“I didn’t want to rock the boat. I just wanted it to stop,” Herring recalls.

Bryant encouraged Herring to begin taking notes, which she did. Then Stinnett’s harassment became physical.

“One day, I knelt down to pick up a file, and he rubbed his foot up my backside,” Herring recalls.

Herring has gone over this shocking moment so many times in legal proceedings, she says she has no emotion left to express as she describes the effect it had on her. Instead, she coolly says, “I felt violated. I felt ashamed.”

Following this and other incidents involving inappropriate physical contact, Herring says she went from being uncomfortable at work to being frightened to be there. Her fears soared to new heights, she adds, when Stinnett pulled the restroom stunt.

“I didn’t know what he was going to do or how far it was going to go,” Herring says, her detached demeanor cracking slightly as her expression tightens. “It was traumatic and scary.”

Herring reported the incident to Bryant, who skipped Mozolic and delivered the details to corporate. When corporate became involved, the situation went from bad to worse, Mikel says.

“Corporate” consisted of Chuck Gibson, a human resources manager, and John Fredrickson, a SCI market manager, both of whom were based in North Carolina.

Gibson traveled to East Lawn and interviewed Herring, but Mikel’s impression of the HR manager’s attitude is less than diplomatic. “I think he wanted to stick his head in the sand,” she explains. “He labeled what Tim was doing as juvenile behavior. I think he was hoping the whole thing would go away.”

Gibson passed the ball to Fredrickson, who came to East Lawn and spoke with Mozolic and Stinnett. Mikel adds Fredrickson told Stinnett to stop talking juvenile at work but delved no further into the matter.

“No one interviewed Tim and no one took notes about his behavior,” Mikel clarifies. “He was never disciplined, and nothing was placed in his personnel file. It was as if it had never happened.”

Instead, Mikel says, East Lawn began building a record against Herring, beginning with her attendance at work. Before Herring reported Stinnett’s harassment, she was able to work from home when her children were sick. Company records show this did not cause a drop in her sales.

“She worked hard when she was home,” Mikel says.

After Herring reported the harassment, her supervisors set up a schedule requiring her to be in the office daily during certain hours. Mikel notes the funeral home had never set up a similar system for its other family counselors.

In addition, Herring was reprimanded when she missed work to take care of her sick children.

Even worse, the harassment continued, Herring says. The day after Stinnett met with Fredrickson, he sent Herring a sexually-themed cartoon in a text message.

“You call that your private area?” a man says to a woman. “You get any more traffic down there, you’ll have to open a Starbucks!”

After corporate became involved, Herring also reported being treated poorly by not just Mozolic but also Bryant, who had been her only ally in the increasingly hostile situation.

Herring reported the continued harassment to Fredrickson in an email. He offered two solutions, she recalls, which he presented during a return trip to East Lawn.

One involved Herring stepping down to a lower sales position. While this would have removed Herring from the hostile environment, she would have made less money and lost benefits. “It would have been a demotion,” Mikel adds, shaking her head in disbelief.

Alternatively, Fredrickson suggested Herring meet with Mozolic and lay everything on the table.

“He told her to sit down with a person who was being brash and hostile toward her and be brutally honest,” says Mikel, who later found this option to be equally appalling.

Trusting Fredrickson, Herring chose door Option 2. “Tim knows I went to HR,” she recalls saying to Mozolic as they sat down to begin their meeting, “and I feel like you’re mad at me.” Notes from the meeting indicate Mozolic responded by raising her voice and accusing Herring of backstabbing her coworkers.

In the wake of their discussion, Mozolic wrote a letter reprimanding Herring for being negative and confrontational. Mikel says she believes her client was set up. “She did what Fredrickson told her to do,” she says, frowning.

Herring remembers being confused and wondering if she was in the wrong. “I heard, ‘Go talk to this person,’ and, ‘Go talk to that person,’ and then suddenly things were turned around and I was the one taking the blame,” she recalls. “I began to question, ‘Should I have said something else? Should I have done something different? Is this on me?’”

Herring took the one ounce of resolve she had left and refused to sign Mozolic’s reprimand. Desperate for a resolution, she summarized her frustration in an email to Bryant, Mozolic, Gibson and Fredrickson on Nov. 5, 2013, writing, “This is the most hostile work environment I’ve ever been in. I don’t know what to do.”

Mozolic fired her four hours later, she recalls.

Herring’s day in court

Herring says she quickly hit rock bottom. Although she applied for every job she thought would pay enough to support her family, no one hired her. Her husband at the time was in construction and out of work more often than not, she says, so the family’s financial situation grew dire.

Herring’s father invited the family to stay with him in Chattanooga until they were back on their feet. Grateful for the safety net, Herring and her family moved to the Scenic City.

Herring also sought to legally right the wrongs she’d suffered. In 2015, Mikel, an attorney with Burnette, Dobson & Pichak, took over from the attorney who had handled the EEOC phase of the case in Texas, where SCI is headquartered.

Herring needed an attorney in Tennessee, where the alleged harassment had occurred, and was grateful Mikel, an employment law attorney who specializes in representing plaintiffs in civil rights cases, took her case.

Mikel says she originally practiced business law but was forced to explore a different path when the first firm for which she worked went out of business.

“When I decided to pursue the legal profession, it was with the intention to help those who needed empowerment,” Mikel points out. “As rewarding as representing businesses was, it wasn’t my passion. Now I find fulfillment in being a voice for those who cannot afford one.”

Fellow Burnette Dobson attorney Doug Hamill joined Mikel in the fight.

Mikel says she believed Herring had a solid Title VII claim, despite the EEOC closing the case without issuing any finding of cause. “In my experience, failure to get a cause finding is not indicative of how a case will turn out in court,” she explains.

Mikel’s faith rested in what she says was the clear violation of the laws that call for parity in the workplace.

“The genesis of any sexual harassment case is found in the anti-discrimination laws that demand equality,” she notes. “Women employees should not be subjected to sexual treatment or comments to which men are not exposed or which drive them out of their careers.”

Mikel’s strategy involved painting a picture that showed the stark contrast between Herring’s life before the harassment occurred and after it took place. “There was a clear division between what Andrea’s life was like before she complained about sexual harassment and after,” her attorney says. “That theme was easy to develop and invited the jury to rewrite my client’s after story.”

But Mikel faced a number of challenges from the beginning. One was the political make-up of Greeneville, where the case was heard.

Before the trial, Mikel spoke with a former district attorney in the area to get a sense of the political leanings of potential jurors. He told her to expect a “super-conservative” jury.

“We were expecting a tough jury,” Mikel acknowledges. “So, my strategy during jury selection was to help everyone see you don’t have to be a liberal to understand the importance of these laws and why they should be enforced.”

Mikel also was concerned about jurors associating the case with the ubiquitous #MeToo movement after having already been subjected to an overdose of the topic. To her relief, when she asked potential jurors if they felt like too many women were coming out about past abuse or if it was time for these things to surface and be handled, the overwhelming response was that it was time for the abuse to be made known and for things to change.

“Jurors will often sit and wait for other people to raise their hands before they’re open about a topic like that, but in this case, everyone immediately raised their hands,” Mikel remembers.

Her apprehension about the jury assuaged, Mikel had one more concern: Stinnett’s sexual orientation.

The traditional definition of sexual harassment involves a male boss hitting on a female employee and telling her she’ll get ahead if she welcomes his advances. But a lot has changed culturally since the first sexual harassment cases established this precedent in the ‘80s and ‘90s, Mikel adds.

“In this case, a gay male did the harassing,” she clarifies. “Although that challenges the traditional notion of sexual harassment, case law says sexual desire does not have to be present for there to be harassment; one gender simply has to be treated differently than another.

“Still, we were a little worried a jury might not understand why a gay male would harass a straight female.”

As Mikel painted a before-and-after picture of Herring’s life, the defense claimed Herring never said Stinnett sexually harassed her, but merely said he was acting in a juvenile manner; therefore, SCI was never given any information on which they were compelled to act.

While Herring was initially sheepish about using the term “sexual harassment” when she reported Stinnett’s behavior, she did eventually use the phrase “hostile work environment.” SCI, however, insisted Stinnett was merely being a prankster.

To show the disparity between what the defense claimed happened and what Herring experienced, Mikel placed her client on the stand and asked her to paint a picture of her own.

Herring took the brush and palette Mikel gave her and covered the canvas with detailed recollections of the harassment and abuse she endured. She then had to watch as the defense splattered her painfully wrought work with bold, aggressive strokes.

“Hearing them try to justify what happened was hard to swallow. I had to pour everything out and relive it all again, but I thought everything would be OK because everyone had heard the truth,” Herring says. “Then I was thrown overboard again and I was drowning.”

A specific as Herring had to be about sexual topics, the humiliation she felt while doing this paled in comparison to having her character assassinated as SCI mounted its attack on her performance and attitude at work. “They had assassinated Andrea’s character once already, but she had to endure it again as she was cross-examined and listened to SCI’s witnesses talk about the things she’d done wrong at work,” Mikel recounts.

During her closing argument, Mikel asked the jury to apply the final layer of paint. “I asked them to look at the before and after picture and decide that the picture SCI drew didn’t have to be how her story ends,” Mikel said as she brought nearly two years of work on the case to a close.

The verdict

The trial lasted four days and was divided into two phases. The first phase dealt with basic liability and whether or not SCI should be liable for punitive damages. The second phase determined the amount of the punitive damages.

The first part of the trial lasted three days. As Herring waited for the verdict, she wondered if the jury had seen the truth or had allowed the defense to pull the wool over their eyes. “There were a lot of tears and pacing, but either way, I had stood up and my voice had been heard,” Herring says.

Herring didn’t have to pace long: the jury deliberated for about two hours and then returned a verdict finding SCI liable.

The jurors also found that SCI owed Herring $100,000 in back pay but didn’t award her any money for lost future wages. “She’s young and promising and she’ll do well,” Mikel says. “I think they took that into account.”

The first verdict also included $200,000 for emotional distress, including $50,000 for the sexual harassment and hostile workplace and $150,000 for the retaliation.

After Herring heard that the jury found SCI liable, the voice of the person reading the verdict became muffled in her head as she thought about how her life had changed. “I was relieved but I also thought about the future I had lost,” she acknowledges. “There was nothing the jury could say that would give me my life back.”

The jury did, however, do everything in its ability to punish SCI. After the final day of proceedings, it awarded Herring $1,750,000 in punitive damages, bringing the total verdict to more than $2 million.

Mikel adds she believes the award is one of the largest single plaintiff verdicts in an employment case in federal court in at least Middle and East Tennessee. She also thinks it’s wholly appropriate.

“The punitive damages were not just a reflection of the sexual harassment but also how SCI reacted to it,” Mikel explains. “Instead of dealing with the harassment, which they didn’t meaningfully investigate, and the harasser, they turned on Andrea. She was the bad guy and they punished her for it.”

While Mikel is pleased for her client, she hopes the size of the verdict will draw enough attention to the case to keep the same things from happening to others. She also hopes it impacts how SCI operates, especially in Tennessee.

“To make a company feel it when it has this many employees nationwide, you have to do something significant,” Mikel says. “This was a case of David versus Goliath, and to take down a Goliath, you have to hit them where it hurts.”

Although caps will limit the emotional distress and punitive damages to $300,000, Mikel says the verdict sends a loud and clear message that sexual harassment and retaliation are not OK.

“We didn’t necessarily expect to hear that statement in Greeneville, which is generally viewed as very conservative,” Mikel points out. “But people from all backgrounds and persuasions are beginning to understand that equality is a moral issue, not a political one.”

Hindsight

There was a time when it would have been easy to sweep a case like Herring’s under the rug. But one of the upshots of the #MeToo movement is companies can no longer ignore these kinds of matters, Mikel says.

“You now see the NBCs of the world doing something quickly when it becomes publicly known that something like this has been happening,” Mikel continues. “Harvey Weinstein sounds like a horrible person, but it took that awful situation for people to come forward and say this has to stop.”

The first thing a company should do when it becomes aware of sexual harassment is take it seriously, Mikel says. “Learn how to recognize such a complaint, conduct a prompt investigation and take action to show your dedication to anti-harassment obligations.”

“If the complaint appears to lack foundation, re-train your employees on your sexual harassment policies. If the complaint has merit, take appropriate action and keep appropriate records so it can be redressed and prevented in the future.”

Victims in turn should feel empowered to stand up for themselves, although Mikel admits this might never be easy to do. “For a long time, women have found it hard to defend themselves again these things,” Mikel adds.

“It’s fine to say, ‘This is wrong and we shouldn’t allow it’ when you’re talking about other people, but when you’re talking about yourself, it’s hard to say, ‘I don’t want to rock the boat at work because I have a family to consider, but something has to be done.’”

Mikel is proud of Herring for standing up for herself in the face of reliving the harassment and the uncertainty of the outcome.

“It’s hard for women to do that. I represent people in civil rights cases, and I’ve been in situations where I’ve had force myself to say, ‘I should get a raise,’ or, ‘I should earn more for my contribution.’ So, I like that Andrea did it successfully in this case.”

Moving forward, Mikel hopes cases like Herring’s will encourage society at large to hold companies responsible when they fall short of doing the right thing.

“In Andrea’s case, people should be offended by the corporate response,” she says. “There will always be the Tim Stinnett’s of the world, but how employers respond to them will make a difference and help people like Andrea speak up.”

The outcome

A small corner of the world looks different in the aftermath of Andrea Herring v. SCI Tennessee Funeral Services.

Bryant and Mozolic are no longer with SCI. Bryant left on her own, Mikel says, and Mozolic reportedly stepped down from general manager to funeral director after other employees began to complain about her brash and hostile behavior.

A few months, she later retired.

Stinnett, who did not return calls for comment before this article was published, is working at Sherwood Chapel and Memorial Gardens, an affiliate of SCI under the Dignity Memorial brand in Alcoa.

This is a sore point with Mikel, who says the laws that address sexual harassment are not set up to deal with the “Tim Stinnetts of the world.”

“Tennessee has put in place a law that would punish the victims who sue an individual if they lose their case. So, the laws are set up to make it scary for someone in Andrea’s position to sue an individual.

“As a practical matter, you’re more concerned about holding a corporation responsible because they have the resources to make it right, whereas Tim Stinnett doesn’t. But he’s one of two culpable figures in this case, and he’s still enjoying his job at SCI. He’s suffered no repercussions.”

SCI, which also did not return calls for comment, is pursuing appellate review of the case at the Sixth Circuit Court of Appeals.

Although the district court quickly ruled on all post-trial motions, applied favorable caps for the plaintiff, ordered the defendant to pay a substantial attorney fees and required SCI to offer Herring a job at one of its Chattanooga facilities, the implementation of these rulings has been stayed pending the appeal.

Mikel continues to represent clients in similar cases, saying calls to her from people seeking representation in sexual harassment cases have quadrupled since the Weinstein case exploded and blew the doors wide open.

“There’s a lot going on locally. Some companies are handling it well and dealing with it effectively, and some companies have some learning to do,” Mikel says.

Herring’s entire world looks different. She’s in the process of rebuilding her career, but her experiences at East Lawn have bulldozed the clear, upward path she had once laid out before her.”

After SCI terminated Herring, she says she sank into a deep depression that affected her entire family. Herring and her husband have since divorced, and says she is still struggling to be the confident mother her children need.

“I’m hounding them to go to college, but it’s hard for me to tell them to figure out what they’re going to be when I don’t even know who I am,” Herring says.

As Mikel said, Herring, who’s now 33, is young and promising; she’ll recover. But not only will her future never be what she once intended, her spirit has been irreparably changed.

“They took a part of my soul,” she says, her face downcast. “That changed me.”

Mikel, however, adds she believes Herring has already accomplished something important that will help other people.

Like a pebble thrown into a pond, the outcome of her case will ripple out to others and spur them to action.

“Many victims don’t go all the way; they settle for less because they don’t want to stomach the realities of litigation. But Andrea had the patience, courage and confidence to endure those things and reach the end result,” she says.

“That’s going to make a difference. There are plenty of people out there who need to hear there’s hope and a way to make things right.”

As Herring continues to inch forward, she encourages others who are enduring similar wrongs to find a way to speak up.

“Telling your story will be hard but it will help you, no matter what the outcome is,” she says.

“I might not have a future with SCI anymore, but maybe I can help open their eyes so they can see what’s going on and make sure it doesn’t happen to anyone else.

“I hope that’s the ultimate outcome of this case because I don’t want anyone else to go through what happened to me.”