Zenobia Shepherd can’t wrap her mind around her daughter’s death. Her heart won’t let her.
While she continues to grieve her second-oldest child, Shepherd is also on a quest for justice. On Tuesday, she will appear virtually before a Prince George’s Circuit Court judge who is expected to decide whether a lawsuit she and her husband filed last year against Dominion Residence, an assisted-living facility for the developmentally disabled where Jordan lived; the owners of the Giant store where she worked; and a supervisor at the store will move forward.
“There are thousands of stories like Leilani’s, but there are a lot of families that need to be aware that they have rights,” Shepherd said. “They have rights. Sometimes we take it as if we don’t, and there’s nothing we can do. But we have rights.”
Legal experts say Shepherd’s lawsuit is one of a small but likely growing number of cases filed by family members who claim their loved ones contracted the coronavirus and died as a result of an employer’s negligence. Hundreds of workers have filed similar claims blaming their employer after they contracted the virus.
“Leilani was of a vulnerable class, and they were forcing her to actually work without taking care of her and protecting her,” said William C. Johnson III, who is representing Shepherd. “You can’t put profits over people.”
Jordan participated in a program that placed developmentally challenged residents in jobs. At Giant, her mother said, she did whatever she was asked to do, including assembling grocery carts, cleaning the bathroom and locating items for shoppers.
“She just loved being able to help and give back and to, you know, have a purpose,” she said.
Giant and Dominion Residence have asked the judge to dismiss the case, according to court documents. Stephen J. Marshall, an attorney for Giant of Maryland LLC, said his client does not comment on pending litigation. An attorney for Dominion Residence of Maryland did not return a call seeking comment.
Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, said the question of whether an employer is liable if a worker is exposed to the coronavirus in the workplace is “is still fairly novel because the pandemic is still a fairly new phenomenon.”
“Litigation around covid-19 workplace exposure has been increasing over the last year, and will likely continue to increase with the omicron explosion of cases,” Shachar said in an email.
Diane Hoffmann, the director of the Law and Health Care Program and a professor of health-care law at University of Maryland School of Law, said ordinarily these claims would fall under workers' compensation, which could mean limited recovery.
Johnson is arguing that Jordan was not covered under workers’ compensation.
Unlike some of the other workplace lawsuits stemming from the pandemic, Shepherd’s case is nuanced because of Jordan’s disability and her participation in the work program.
The lawsuit claims negligence and wrongful death and requests that the court issue a judgment for unspecified damages.
The lawsuit charges that Dominion Residence failed to provide a guardian for Jordan, despite a court order requiring one, and that a supervisor at Giant continued to let Jordan work without a guardian. The suit also claims that Dominion did not provide a safe environment for Jordan and failed to provide training on workplace hazards. It also alleges that the Giant supervisor and the store did not require Jordan to wear personal protective equipment.
“She was cleaning the bathroom without gloves and was there without a mask,” Shepherd said, adding that she wants to make employers, nursing homes and assisted-living facilities aware of their responsibilities to those who are vulnerable.
Shachar, speaking generally and not specifically about what happened in Jordan’s case, said employers have a duty to provide a safe, healthy work environment for their employees.
“A really good way to satisfy this requirement would be to provide face coverings or other PPE. If an employer had no or inadequate mitigation efforts in place and an employee got covid-19 from their workplace, you could sue,” she said in an email. “Some of these lawsuits are working their ways through various state courts, although I think it will take some time to fully develop our covid-19 standards for employers (and it will vary based on state, industry and type of role).”
Jordan, whom Shepherd called “Butterfly” for her love of butterflies, told her mom that she was working because “no one else is going to help the senior citizens get their groceries.” Shepherd tried to warn her of the risks of the pandemic, but Jordan continued to work until she could barely breathe.
Jordan began experiencing coronavirus symptoms in March 2020 and was given a “home remedy” by the assisted-living facility, the lawsuit alleges. She was hospitalized after her symptoms worsened. Within hours of being placed on a ventilator, Jordan died in her mother’s arms.
Since Jordan’s death, Shepherd said her younger children, Jeletalora Shepherd, 14, and Zy’on Shepherd, 8, have been in therapy.
They each have had trouble sleeping and problems with eating.
“Zy’on was like [Jordan’s] baby,” Shepherd said. “It has been a nightmare. … I’m just trying to be a mom, that’s all. But I don’t have any good answers for her.”