1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MONA NORRIS,

Plaintiff,

v.

SECURITAS SECURITY SERVICES USA, 

INC., CSX CORP.,1 CSX INTERMODAL 

TERMNIALS, INC., a wholly owned 

subsidiary of CSX CORP., JOHN DOES 1-

111, AND XYZ CORPS., 1-100, 

Defendants.

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

Civil Action No. 10-06809 (SDW) (MCA)

OPINION

July 27, 2011

WIGENTON, District Judge.

Before the Court is Defendant, CSX Intermodal Terminals, Inc.‟s (“CSXIT”), Motion to 

Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (“Motion”). This Court has jurisdiction under 28 

U.S.C. § 1367. Venue is proper in this District pursuant to 28 U.S.C. § 1391. The Motion is 

decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this 

Court grants Defendant‟s Motion.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Mona Norris (“Norris”), was employed as a security guard for Defendant 

Securitas Security Services (“Securitas”) at the time the events leading up to this action occurred.

(Second Am. Compl. (“SAC”) ¶ 10.) Norris alleges that in April of 2010, a CSXIT employee 

named Billy committed acts of sexual harassment and racial discrimination against her. (Id. ¶¶ 

 

1 On January 25, 2011, Defendant CSX Corp. was voluntarily dismissed without prejudice from this action pursuant 

to a stipulation. (Docket Entry No. 9.)

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 1 of 10 PageID: 189
2

16, 17.) According to Plaintiff, Billy told her that “she „needs a man with a good job‟” and if she 

went out with him “she would not need Section 8 housing.” (Id. ¶ 17(a)-(b).) Billy also 

allegedly told Plaintiff that “he likes women with big butts like Plaintiff‟s,” and he also 

“[d]egrad[ed]” her “in public by stating that when he goes to the islands he has „black women 

with big butts sit on his lap.‟” (Id. ¶ 17(c), (h).) Norris also claims that Billy touched her “in a 

possessive and inappropriate way,” asked her out “on a regular basis and” told her that “she 

treats him like „stink meat.‟” (Id. ¶ 17(d), (j).) Furthermore, Plaintiff maintains that Billy 

“urinat[ed] on the bathroom toilet seat” forcing her to clean off the urine, told her that “she is a 

„good maid‟” and made “references that „black nannies are all over the place cleaning.‟” (Id. ¶ 

17(e), (f).) Additionally, Billy allegedly insinuated that Norris “is the first African American to 

be employed at her job for the longest out of the other African American employees” and 

threatened that “if she told on him she would be „out of her job so fast it would make her head 

spin.‟” (Id. ¶ 17(g), (i).)

Plaintiff alleges that she threatened to report Billy to his superior; however, Billy told her 

that no one would believe her because she “„was just a security guard.‟” (Id. ¶ 20.) Norris also 

claims that she did not report the incident “to her supervisors because she was embarrassed, and 

afraid that she would lose her job.” (Id. ¶ 21.)

Nonetheless, Plaintiff alleges that on April 26, 2010, “a clerk and Chris from U.S. 

Security‟s office[, a neighboring security guard company,] wrote a letter to Bruce Sheeley 

alleging that [] [Norris] was harassing U.S. Security‟s guards, and made other various negative 

allegations pertaining to [] [her] work performance.” (Id. ¶¶ 18-23.) As a result of the letter, 

Plaintiff was terminated from her employment with Securitas. (Id. ¶ 25; Def.‟s Br. 3.) Norris 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 2 of 10 PageID: 190
3

maintains that Billy co-authored the letter in retaliation for her “refusal of [his] [] inappropriate 

sexual advances” and her threat to report him to his superiors. (Id. SAC ¶ 24.)

Subsequently, Norris initiated this suit alleging sexual harassment, wrongful termination, 

and hostile work environment under the New Jersey Law Against Discrimination, N.J. Stat. Ann. 

10:5-1 et seq., (“LAD”) (Counts I, II, III), intentional and negligent infliction of emotional 

distress (Counts IV, V), aiding and abetting in violation of LAD (Count VI), hostile and abusive 

work environment based on race in violation of 42 U.S.C. § 1981 (Count VII), hostile and 

abusive work environment based on race in violation of 42 U.S.C. § 2000e-2(a) (Count VIII),2

and hostile and abusive work environment based on race in violation of LAD (Count IX).3

STANDARD OF REVIEW

The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a 

complaint allege “a short and plain statement of the claim showing that the pleader is entitled to 

relief.” This Rule “requires more than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do. Factual allegations must be enough to raise a right to 

relief above the speculative level . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 

(2007) (internal citations omitted); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 

(3d Cir. 2008) (stating that Rule 8 “requires a „showing,‟ rather than a blanket assertion, of an 

entitlement to relief.”). 

In considering a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6), the Court must 

“„accept all factual allegations as true, construe the complaint in the light most favorable to the 

plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff 

 

2 This Count is asserted against Securitas only. 

3 The Complaint does not appear to be asserting vicarious liability against CSXIT. Hence, the focus of the Court‟s 

analysis will be on direct liability.

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 3 of 10 PageID: 191
4

may be entitled to relief.”‟ Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holding Ltd., 292 

F.3d 361, 374 n.7 (3d Cir. 2002)). However, “the tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). As the 

Supreme Court has explained: 

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to “state a claim to relief that is 

plausible on its face.” A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct 

alleged. The plausibility standard is not akin to a “probability 

requirement,” but it asks for more than a sheer possibility that a 

defendant has acted unlawfully. Where a complaint pleads facts 

that are “merely consistent with” a defendant‟s liability, it “stops 

short of the line between possibility and plausibility of „entitlement 

to relief.‟”

Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 556–570) (internal citations omitted). 

Determining whether the allegations in a complaint are “plausible” is “a context-specific task 

that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 

129 S. Ct. at 1950. If the “well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct,” the complaint should be dismissed for failing to “„show[] that the 

pleader is entitled to relief‟” as required by Rule 8(a)(2). Id.

DISCUSSION

1. Sexual Harassment, Hostile Work Environment, and Wrongful Termination Claims 

under the LAD

Defendant argues that Plaintiff has failed to state a claim for sexual harassment, hostile 

work environment, and wrongful termination under the LAD because there is no 

employer/employee relationship between CSXIT and Plaintiff. (Def.‟s Br. 8.) This Court 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 4 of 10 PageID: 192
5

agrees. “[T]he LAD was intended to prohibit discrimination in the context of an 

employer/employee relationship.” Pukowsky v. Caruso, 312 N.J. Super. 171, 184 (App. Div. 

1998). “Correspondingly, the lack of an employment relationship between the plaintiff and the 

defendant will preclude liability.” Thomas v. Cnty. of Camden, 386 N.J. Super. 582, 594 (App. 

Div. 2006). Here, Plaintiff specifically alleges that she was an employee of Securitas. (SAC ¶ 

10.) Plaintiff does not allege that she was an employee of CSXIT. 

Additionally, Plaintiff has not alleged any facts that would suggest that she had an 

employment relationship with Defendant. In determining whether a plaintiff is an employee for 

purposes of LAD, the following factors are considered:

(1) the employer‟s right to control the means and manner of the 

worker‟s performance; (2) the kind of occupation--supervised or 

unsupervised; (3) skill; (4) who furnishes the equipment and 

workplace; (5) the length of time in which the individual has 

worked; (6) the method of payment; (7) the manner of termination 

of the work relationship; (8) whether there is annual leave; (9) 

whether the work is an integral part of the business of the 

“employer;” (10) whether the worker accrues retirement benefits; 

(11) whether the “employer” pays social security taxes; and (12) 

the intention of the parties.

Pukowsky, 312 N.J. Super. at 182-83 (quoting Franz v. Raymond Eisenhardt & Sons, Inc., 732 

F. Supp. 521, 528 (D.N.J. 1990)). The SAC is devoid of any facts that would support any of the

factors enumerated above and Plaintiff‟s assertion that “[i]t is irrelevant to make the distinction” 

that she is not an employee of CSXIT,” (Pl.‟s Br. 7), is not supported by the case law. As the 

court noted in Thomas, “the LAD‟s reach, broad as it is, does not extend to those whose only 

nexus, employment-wise, is to adversely affect an aggrieved person‟s employment with a third 

party.” 386 N.J. Super. at 599. Because Norris has not alleged an employment nexus between 

her and CSXIT, Counts I, II, and III of her Complaint are dismissed. 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 5 of 10 PageID: 193
6

2. Aiding and Abetting Claim under the LAD

“The LAD provides that it is unlawful for „any person, whether an employer or an 

employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden 

under this act, or to attempt to do so.‟” Hurley v. Atlantic City Police Dep‟t, 174 F.3d 95, 126 

(3d Cir. 1999) (quoting N.J. Stat. Ann. § 10:5-12(e)). To be liable as an aider or abettor, a 

plaintiff must show that “„(1) the party whom the defendant aids must perform a wrongful act 

that causes an injury; (2) the defendant must be generally aware of his role as part of an overall 

illegal or tortious activity at the time he provides the assistance; [and] (3) the defendant must 

knowingly and substantially assist the principal violation.‟” Tarr v. Ciasulli, 181 N.J. 70, 84 

(2004) (alteration in original) (quoting Hurley, 174 F.3d at 127). “[T]o „aid or abet‟ under the 

LAD, „individual must willfully and knowingly associate himself or herself with the unlawful 

act, and seek to help make the act succeed. The defendant must share the same intent as the one 

who actually committed the offense.‟” State, Dep‟t of Treasury, Div. of Inv. ex. rel. McCormac 

v. Qwest Communications Int‟l, Inc., 387 N.J. Super. 469, 483 (App. Div. 2006) (quoting 

Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 424 (App. Div. 2001)). 

Here, Plaintiff has not sufficiently pled that CSXIT aided and abetted Billy. Plaintiff 

simply alleges that “Defendants were aware of their roles in contributing to the tortious activity 

that was committed” and “Defendants knowingly and substantially assisted each other in the 

principal violations.” (SAC ¶¶ 49, 50.) However, Norris specifically alleges that she did not 

report Billy‟s conduct to her supervisors. (Id. ¶ 21.) Additionally, although she maintains that 

she threatened to report Billy to his superiors, she does not allege that she actually did. (See id. ¶ 

19.) Defendant cannot “willfully and knowingly associate” itself with Billy‟s alleged conduct if 

it has no knowledge of said conduct. State, Dep‟t of Treasury, Div. of Inv. ex. rel. McCormac, 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 6 of 10 PageID: 194
7

387 N.J. Super. at 483. To the extent that Plaintiff is arguing that CSXIT aided and abetted 

Securitas, that claim also lacks merit because she has not alleged that CSXIT was in any way 

involved in her termination. Norris was an employee of Securitas and she was terminated by 

Securitas. Consequently, Plaintiff has failed to state a direct claim against CSXIT for aiding and 

abetting under the LAD.4

3. Hostile and Abusive Work Environment under Section 1981

Section 1981(a) provides in pertinent part that: 

All persons within the jurisdiction of the United States shall have 

the same right in every State and Territory to make and enforce 

contracts, to sue, be parties, give evidence, and to the full and 

equal benefit of all laws and proceedings for the security of 

persons and property as is enjoyed by white citizens, and shall be 

subject to like punishment, pains, penalties, taxes, licenses, and 

exactions of every kind, and to no other.

To establish a claim under §1981 for hostile work environment, a plaintiff must show “(1) that 

he or she suffered intentional discrimination because of race; (2) the discrimination was 

pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the 

discrimination would detrimentally affect a reasonable person of the same race in that position; 

and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp., 85 

F.3d 1074, 1081 (3d Cir. 1996). In determining whether the work environment is hostile or 

abusive, the court must look at the “totality of the circumstances.” Andrews v. City of 

Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). The court may consider “the frequency of the 

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 

offensive utterance; and whether it unreasonably interferes with an employee‟s work 

 

4

In light of this conclusion, the Court will not address Defendant‟s argument that a corporation cannot be held liable 

for aiding and abetting under LAD. (Def.‟s Br. 10-12.) 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 7 of 10 PageID: 195
8

performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). No single factor is 

dispositive. Id.

The Court finds that Norris has not sufficiently pled a claim against Defendant for hostile 

work environment under §1981. There are only two statements in the Complaint that pertain to 

Norris‟s race. Plaintiff alleges that Billy made “references that „black nannies are all over the 

place cleaning‟” and he also “insinuat[ed] that Plaintiff is the first African American to be 

employed at her job for the longest out of the other African American employees.” (SAC ¶ 

17(f), (g).) Norris does not indicate the number of occasions Billy made these statements. 

Nonetheless, these two statements are not sufficient to constitute pervasive or regular 

discrimination. At most, those statements are “mere offensive utterances.” Harris, 510 U.S. at 

23. 

Plaintiff argues that “[i]f the racial slurs made by „Billy‟ are true, the Plaintiff‟s 

contractual rights in the workplace could be affected.” (Pl.‟s Br. 17.) However, there is no 

allegation in the Complaint that Norris has a contract with CSXIT. Plaintiff does not even allege 

that she has a relationship with CSXIT. Consequently, Plaintiff has no basis to assert a claim 

against CSXIT under §1981. 

4. Negligent or Intentional Infliction of Emotional Distress

a. Negligent Infliction of Emotional Distress

In New Jersey, a plaintiff may maintain an action for negligent infliction of emotional 

distress under two scenarios. First, “[a] plaintiff can demonstrate that the defendant‟s negligent 

conduct placed the plaintiff in reasonable fear of immediate personal injury, which gave rise to 

emotional distress that resulted in a substantial bodily injury or sickness.” Jablonowska v. 

Suther, 195 N.J. 91, 104 (2008). On the other hand, a plaintiff can maintain an action for 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 8 of 10 PageID: 196
9

negligent infliction of emotional distress by satisfying the four elements set forth in Portee v. 

Jafee, 84 N.J. 88, 101 (1980). These elements are: “(1) the defendant‟s negligence caused the 

death of, or serious physical injury, to another; (2) the plaintiff shared a marital or intimate, 

familial relationship with the injured person; (3) the plaintiff had a sensory and contemporaneous 

observation of the death or injury at the scene of the accident; and (4) the plaintiff suffered 

severe emotional distress.” Jablonowska, 195 N.J. at 103 (citing Portee, 84 N.J. at 97, 101).

Plaintiff has not alleged any facts suggesting that CSXIT was negligent. Plaintiff admits 

that she did not report Billy‟s conduct to Defendant or to Billy‟s supervisors. (SAC ¶¶ 19-21.) 

Additionally, Norris has not pled any facts showing that she was placed “in reasonable fear of 

immediate personal injury.” Jablonowska, 195 N.J. at 104. Furthermore, Plaintiff has not 

alleged any facts that would satisfy the elements set forth in Portee. Consequently, Plaintiff has 

failed to state a claim for negligent infliction of emotional distress against CSIX and that count is 

dismissed.

b. Intentional Infliction of Emotional Distress

Generally, to establish a claim for intentional infliction of emotional distress, the plaintiff 

must show “intentional and outrageous conduct by the defendant, proximate cause, and distress 

that is severe.” Buckley v. Trenton Sav. Fund Soc‟y, 111 N.J. 355, 366 (1988). “The conduct 

must be so outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized 

community.” Id. (citation and internal quotation marks omitted). “The liability clearly does not 

extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” 

Taylor v. Metzger, 152 N.J. 490, 509 (1998) (quoting 49 Prospect St. Tenants Ass‟n v. Sheva 

Gardens, Inc., 227 N.J. Super. 449, 472 (App. Div. 1988)) (internal quotation marks omitted). 

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 9 of 10 PageID: 197
10

Plaintiff has not pled sufficient facts to support a claim for intentional infliction of 

emotional distress against CSXIT. Norris has not even alleged that Defendant had any 

knowledge of Billy‟s conduct. Furthermore, CSXIT had no involvement in Plaintiff‟s 

termination. There are simply no facts in the Complaint that would support a claim of 

intentional infliction of emotional distress against Defendant. Furthermore, “[i]n New Jersey, it 

is „extremely rare to find conduct in the employment context that will rise to the level of 

outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of 

emotional distress.‟” Sanchez v. SunGard Availability Services LP, 362 Fed. Appx. 283, 288 

(3d Cir. 2010) (quoting Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24 (App. 

Div. 2001)); see also Witherspoon v. Rent-A-Car-Center, Inc., 173 F. Supp. 2d 239, 242 (D.N.J. 

2001) (“it is particularly difficult to establish intentional infliction of emotional distress in the 

employment context.”). Accordingly, Norris‟s claim is dismissed.

CONCLUSION

For the above stated reasons, CSXIT‟s Motion is GRANTED.

s/ Susan D. Wigenton 

Susan D. Wigenton, U.S.D.J.

cc: Madeline Cox Arleo, U.S.M.J.

Case 2:10-cv-06809-SDW-MCA Document 20 Filed 07/27/11 Page 10 of 10 PageID: 198