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Powell v. Verizon

United States District Court, D. New Jersey

September 20, 2019

VERIZON, BRENDAN MCHALE, JOHN DOES 1-20 (fictitious individuals), and ABC CORPORATIONS 1-6 (fictitious names), Defendants.


          Hon. Kevin McNulty, United States District Judge.

         The 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.

         Now 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).

         I. Facts[1]

         Verizon 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 ¶ 3).

         In June 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).

         At the 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).

         Sometime 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).

         As a 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").[2] (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).

         In 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).

         In 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).

         After 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).

         On the 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).

         Powell 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 ¶ 40).

         About 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).

         Powell 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).

         Curty 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).

         Powell 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).

         II. Procedural History

         On June 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
16. Ratification
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).

         III. Discussion

         A. Standard of Review

         Federal 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).

         Federal 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.

         The 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 ...

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