United States District Court, D. New Jersey
Kevin McNulty, United States District Judge.
plaintiff, Marisa Powell, has sued defendants Verizon and
Brendan McHale, as well as anonymous others, under Title VII
of the Civil Rights Act of 1964, the New Jersey Law Against
Discrimination, and the state common law. She alleges
twenty-one causes of action, including discrimination,
hostile work environment, and retaliation.
before the Court are the motions of Verizon and McHale to
dismiss the amended complaint for failure to state a claim
upon which relief may be granted, pursuant to Fed.R.Civ.P.
12(b)(6). (DE 32 8s 33). The motions to dismiss are granted
for the most part. The only claims remaining are (1) the
hostile work environment claim under Title VII (Count 3), as
against Verizon only; and (2) the claim for intentional
infliction of emotional distress (Count 9).
has employed Marisa Powell since 1989. She currently works at
Verizon's Madison office as a Network Tech. (1AC ¶
1-2). Powell is an African- American woman, a fact relevant
to the allegations. (1AC ¶ 1). The facts of this case
begin with her time at the Morristown office and conclude at
the Madison office, where she is currently assigned. (1AC
2015, Powell first suffered harassment at the hands of her
co-worker Brendan McHale. (1AC ¶ 4). McHale began
stalking Powell while she was working. (1AC ¶ 5) He
would go out of his way to find her and watch her and would
routinely come up behind her and yell at her. (1AC ¶ 5).
He would also hide and lock her equipment without her
knowledge or consent. (1AC ¶ 5). Powell immediately
reported this harassment to supervisors and union
representatives, but neither took any effective action
against McHale. (1AC ¶ 6). Eventually, a manager and
union representatives scheduled a meeting. (1AC ¶ 7).
Before the meeting, the union representatives told Mrs.
Powell not to say "anything that will get her in trouble
or fired." (1AC ¶ 7). Powell is unclear what this
meant. (1AC ¶ 7).
meeting Powell told her manager that she simply wanted to be
able to come to work each day without feeling afraid of or
threatened by coworkers. (1AC ¶ 8). Afterward, Powell
overheard her union representatives tell her manager that
Powell was maneuvering to be moved closer to home. This was
not true. (1AC ¶ 9).
shortly after the meeting, Powell was told to report to
Verizon internal security. (1AC ¶ 10). She was
interrogated and falsely accused of having taken photos of
her co-workers. (1AC ¶ 10). A few days later, Powell was
told not to tell anyone about her interrogation at the hands
of Verizon security. (lAC¶ll).
result of the constant stalking by McHale, Powell developed a
medical condition and took a nine-month leave of absence
pursuant to an Employee Assistance Program
("EAP"). (1AC ¶ 12). Upon her return,
Powell was refused any accommodation for her documented
medical condition. (1AC ¶ 13}. At this point she was
reassigned to Verizon's Madison office. (1AC ¶ 13).
The Madison office, however, was still within the area that
McHale covered, and Powell was regularly forced to see and
interact with him. (1AC ¶ 14).
Madison, Powell was assigned to the switch room, where her
laptop was secured to the desk. (1AC ¶ 15). Her
supervisors told her that she was not allowed to leave the
room while at work. (1AC ¶ 15). During her first week
back at work, McHale's duties took him to the Madison
office, but Powell received no advance notice that he would
be there. (1AC ¶ 16). When she mentioned the stalking
issue to her supervisors, she was told that Verizon could not
protect her, and they instructed her to call 911 if she felt
threatened. (1AC ¶ 16). McHale continued to cover the
Madison office from time to time. (1AC ¶ 17).
August 2017, Powell found in her desk drawer an advertisement
for Playboy magazine that featured a picture of a naked woman
with the message "Every Man's Christmas Wish."
(1AC ¶ 18). Only Verizon employees have access to the
area where Powell worked. (1AC ¶ 19).
some time working in Madison, Powell took a second leave of
absence-this one related to a back injury-but she again
returned to work. (1AC ¶ 21). After this second leave of
absence, she requested a transfer to an office where she
would have no further contact with McHale, but this request
was ignored. (1AC ¶ 21-22). Powell continued to work in
Madison but was now also expected to cover Morristown when
necessary. (1AC ¶ 22).
February 14, 2019, Powell was in the Madison office as usual.
(1AC ¶ 23). McHale had worked the overnight shift in
Madison from February 13 to 14. (1AC ¶ 24). That
morning, Powell entered her workspace to find a noose crafted
out of wires hanging above her desk. (1AC ¶ 25). The
noose- which was tied around a support beam-had been
fashioned from red, white, green, and blue wires that matched
none of the other wires in the office. (1AC ¶ 33).
Powell was humiliated, anxious, distressed, nervous, and
anguished. (1AC ¶ 30). Only Verizon employees had access
to Powell's workspace. (1AC 130).
immediately took a picture of the noose and sent the picture
to two others. (1AC ¶ 34). She also emailed her union
representative, Chuck Webber; her supervisor, Bryan Curty;
her manager, Karen Lamore; and Director Orlando Figueroa.
(1AC ¶ 35). Eventually, John Miller, an official from
her union, called and apologized for what had happened. (1AC
¶ 37). Powell then emailed Yolanda Stancil,
Verizon's regional president, about the noose, attaching
pictures to the message. (1AC ¶ 38). "In fear of
the noose and what could have happened while she was
alone," Powell then hid from her coworkers. (1AC ¶
an hour later, Curty arrived at the Madison office and called
for her. (1AC ¶¶ 39, 41). Curty asked Powell what
had happened, and Powell replied "this," pointing
to the noose. (1AC ¶ 42). Curty asked "what?"
and "where?" as if he could not see the noose. (1AC
¶ 43). Finally, after Powell urged him on, he
acknowledged the noose by saying "Oh this?" (1AC
¶ 44). When Powell told him it was a noose, he said
"it could be, but then maybe not." (1AC ¶ 44).
Powell-the only African American woman in the office-was in
great emotional pain. (1AC ¶ 45). She began to cry and
walked out of the room. (1AC ¶ 45).
hid in a quiet area, crying, until Curty approached her and
told her he had cut down the noose. (1AC ¶ 46). He told
Powell that she looked upset and that Verizon's human
resources department was aware of the situation. (1AC ¶
47). He also told her that if he saw someone doing this, he
would fire them on the spot "or give them ten
days." (1AC ¶ 47).
asked Powell if she wanted to leave, and she told him she
did. (1AC ¶ 50). He accompanied her outside and asked
her to text him when she arrived at home. (1AC ¶ 51).
promptly filed a complaint with the Equal Employment
Opportunity Commission on February 26, 2019 (1AC ¶ 55),
but she has not had any additional contact with Verizon
regarding the incident, (1AC ¶ 56). The Morris County
Prosecutor's Office is currently conducting a hate crime
investigation into the incident. (1AC ¶ 57).
3, 2019, Powell filed her (first) amended complaint, naming
as defendants Verizon and McHale, as well as John Doe
defendants. (DE 21). The amended complaint asserts the
following twenty-one causes of action:
1. Race-Based Discrimination in Violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(A)
2. Race-Based Discrimination in Violation of the New Jersey
Law Against Discrimination, N.J. Stat. Ann. § 10:5-12
3. Race-Based Discrimination (Hostile Work Environment) in
Violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(A)
4. Retaliation in Violation of Title VII of die Civil Rights
Act of 1964, 42 U.S.C. § 2000e-3(A)
5. Sexual Harassment/Assault
6. Violation of the Americans with Disabilities Act
7. False Imprisonment
8. Invasion of Privacy
9. Intentional Infliction of Emotional Distress
10. Negligent Infliction of Emotional Distress
11. Negligent Hiring
12. Negligent Supervision
13. Negligent Retention
14. Vicarious Liability
15. Respondeat Superior
17. Failure to Warn/Misrepresentation
18. Gross Negligence
19. Civil Conspiracy
20. Res Ipsa Loquitur
21. Punitive Damages
(DE 21). On July 1, 2019, defendants Verizon and McHale moved
to dismiss the amended complaint. (DE 32 & 33).
Standard of Review
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, if it fails to state a
claim upon which relief can be granted. The defendant, as the
moving party, bears the burden of showing that no claim has
been stated. Animal Sci. Prods., Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the
purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences
are drawn in favor of the plaintiff. N.J. Carpenters
& the Trs. Thereof v. Tishman Const Corp. of
N.J., 760 F.3d 297, 302 (3d Cir. 2014).
Rule of Civil Procedure 8(a) does not require that a
complaint contain detailed factual allegations. Nevertheless,
"a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, the complaint's factual allegations must be
sufficient to raise a plaintiffs right to relief above a
speculative level, so that a claim is "plausible on its
face." Id. at 570; see also W. Run Student
Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d
165, 169 (3d Cir. 2013). That facial-plausibility standard is
met "when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While "[t]he
plausibility standard is not akin to a 'probability
requirement'... it asks for more than a sheer
possibility." Iqbal, 556 U.S. at 678.
Court in considering a Rule 12(b)(6) motion is confined to
the allegations of the complaint, with narrow exceptions:
Although phrased in relatively strict terms, we have declined
to interpret this rule narrowly. In deciding motions under
Rule 12(b)(6), courts may consider "document[s] integral
to or explicitly relied upon in the complaint," or any
"undisputedly authentic document that a defendant
attaches as an exhibit to a motion ...