However, the record reveals that plaintiff suffers not only
emotional, but also at least one physical injury — an ulcer.
Thus, the court need not decide the narrow issue presented in
Although plaintiff suffers from an ulcer, defendants claim
that such an injury is merely a physical manifestation of her
emotional problems and therefore does not meet the physical
injury requirement to state a claim under the FELA. Defendants
cite Elliott v. Norfolk & Western Ry. Co., 722 F. Supp. 1376
(S.D.W. Va. 1989), aff'd on other grounds, 910 F.2d 1224 (4th
Cir. 1990), and Rose v. National R.R. Passenger Corp., Civ. No.
88-0955 (D.D.C. Sept. 27, 1989), in support of their position.
Since neither the plaintiff in Elliott or Rose suffered
from any discrete physical injury, however, the court finds
these cases unpersuasive. In Elliott, the plaintiff alleged
that her employer negligently caused her to suffer "mental
anguish, emotional distress, and pain and suffering." 722
F. Supp. at 1377. The court found that "the weight of authority
goes against permitting the maintenance of an action under FELA
for such a cause of action without a physical cause and/or
physical manifestation beyond that associated with
psychological injury[.]" Id. at 1377-78. However, the court's
opinion does not state what physical manifestations of
psychological injury the plaintiff suffered from. Unlike this
case, where plaintiff has suffered an ulcer, nothing in the
Elliott opinion indicates that the plaintiff suffered from any
type of manifest physical injury.
In Rose, the plaintiff charged her employer with negligent
supervision of its employees, resulting in her suffering
"severe depression and physical symptoms associated with work
related stress" and "severe physical and mental anguish." Rose
at 6-7. The court found that "[c]alling `anguish' `physical'
does not make it so," id. at 7, and noted that under District
of Columbia law "physical manifestations of emotional problems
are not enough to meet the physical injury element of a
negligent infliction of emotional distress claim." Id.
(citation omitted). As in Elliott, however, there is no
indication that the plaintiff in Rose suffered any clear
physical ailment. Thus, the court finds that plaintiff's ulcer
is sufficient to meet the physical injury requirement for her
emotional distress claim.*fn9
Furthermore, defendants cite numerous cases for the
proposition that plaintiff's injuries are not recoverable
under the FELA unless they were caused by physical contact or
the threat of physical contact. Without deciding whether they
have correctly stated the law, the court notes that defendants
have disregarded the facts of this case. Plaintiff has alleged
defendants' negligence in failing to protect her from the
"assaultive behavior of [their] employees." Third Amended
Complaint at ¶ 11. In support of her allegation, plaintiff has
submitted her deposition testimony in which she recounts
various incidents of being uninvitingly kissed, hugged,
grabbed, and physically lifted off the ground. Masiello Dep. at
134-38. Thus, plaintiff has clearly alleged that her injuries
were caused at least in part by physical contact.
In light of the fact that plaintiff has alleged both
physical contact in causing her injuries and a significant
physical injury, the court finds that plaintiff has stated a
cause of action for the negligent infliction of emotional
distress under the FELA.*fn10
3. Respondeat Superior vs. Direct Negligence
Defendants' further argue that they should not be liable for
the acts of sexual harrasment committed by their employees
since these acts were motivated by personal reasons and were
not in furtherance of the railroads' goals. Apparently,
defendants are asserting a defense to a respondeat superior
claim. In a recent case the Second Circuit stated that
[u]nder the FELA, [to recover under a theory of
respondeat superior] not only must the
injured employee be acting within the scope of
employment at the time of injury, but the employee
whose conduct causes the injury must also be acting
within the scope of his employment. Thus, under the
FELA employers are liable for the negligence of
their employees only if it occurs within the scope
of employment, and no liability attaches when an
employee acts "entirely upon his own impulse, for
his own amusement, and for no purpose of or benefit
to the defendant employer."
Gallose v. Long Island R.R. Co., 878 F.2d 80, 83 (2d Cir. 1989)
(emphasis in original) (quoting Copeland v. St. Louis-San
Francisco Ry. Co., 291 F.2d 119, 120 (10th Cir. 1961); other
citations omitted). However, plaintiff claims that her injuries
were caused "solely through the negligence of the Defendant[s]
in failing to provide [her] with a safe place to work and a
safe environment in which to work." Joint Pre-Trial Order at 5
(emphasis added); see also, Plaintiff's Memorandum in
Opposition at 11-13 (plaintiff claiming direct negligence of
defendants). Since plaintiff is claiming recovery not under
respondeat superior but rather for defendants' direct
negligence, it is not necessary for her to show that the
underlying act which caused her injury was done in furtherance
of the railroad's goals. See Lancaster v. Norfolk and Western
Ry. Co., 773 F.2d 807 (7th Cir. 1985), cert. denied,
480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). See also, Lillie v.
Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947);
Harrison v. Missouri Pacific R.R. Co., 372 U.S. 248, 83 S.Ct.
690, 9 L.Ed.2d 711 (1963); Gallose v. Long Island R.R. Co.,
878 F.2d 80 (2d Cir. 1989); Schneider v. National R.R. Passenger
Corp., 854 F.2d 14 (2d Cir. 1988); Hartel v. Long Island R.R.
Co., 476 F.2d 462 (2d Cir.), cert. denied, 414 U.S. 980,
94 S.Ct. 273, 38 L.Ed.2d 224 (1973); Burns v. Penn Central Co.,
519 F.2d 512 (2d Cir. 1975).
4. Intentional vs. Negligent Infliction of Emotional Distress
Defendants next argue that plaintiff has not made out a
claim for intentional infliction of emotional distress.
Specifically, defendants claim that the acts of harassment
which plaintiff alleges were not "extreme and outrageous" as
required under New York law.*fn11 See Bower v. Weisman,
639 F. Supp. 532, 541 (S.D.N.Y. 1986); Fischer v. Maloney, 43 N.Y.2d
553, 402 N.Y.S.2d 991, 992, 373 N.E.2d 1215, 1216 (1978).
However, the court need not determine whether defendants'
conduct was "extreme and outrageous" since plaintiff has made
it quite clear that she is alleging negligent — not
intentional — infliction of emotional distress.*fn12
Plaintiff's Memorandum in Opposition
at 13-14. Plaintiff alleges that the injuries she suffered
from the sexual harassment were caused
solely by reason of the negligence of the
defendants, their agents, servants and employees
in the performance of their duties; in failing to
exercise due care and diligence; in failing to
provide plaintiff with a safe place to work and
safe environment in which to work; in failing to
protect plaintiff from the sexual harassment and
assaultive behavior of its employees despite
repeated complaints and requests to do so; in
failing to make proper and adequate provision for
the safety of the plaintiff; in failing to
provide proper facilities for the plaintiff; in
failing to promulgate and enforce proper and safe
rules for the safe conduct of the work operations
of the railroad and the defendant[s] [were]
otherwise generally negligent under the
Third Amended Complaint at ¶ 11. Furthermore, since plaintiff
is seeking to recover for defendants' negligence, defendants'
focus on the acts of plaintiff's co-workers seems to be
misplaced. While the court is aware that the word "negligence"
in the FELA has been broadly construed to include some
intentional torts, see Buell, 480 U.S. at 562 n. 8, 107 S.Ct.
at 1414 n. 8 (and cases cited therein), a thorough reading of
both plaintiff's complaint and memorandum of law indicates that
she is seeking to recover solely for defendants' "traditional"
5. Defendants' Negligence Under the FELA
Next, defendants argue that even if the court finds that
plaintiff has stated a cause of action under the FELA, it
should find that they were not negligent as a matter of law.
The Supreme Court has held that under the FELA, a case should
go to a jury if a reasonable jury could find that "employer
negligence played any part, even the slightest, in producing
the injury . . . for which damages are sought." Rogers v.
Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443,
448, 1 L.Ed.2d 493 (1957) (footnotes omitted). Thus, "the role
of the jury is significantly greater in . . . FELA cases than
in common law negligence actions[,]" and the right of the jury
to pass upon the railroad's liability "must be most liberally
viewed." Johannessen v. Gulf Trading & Transp. Co.,
633 F.2d 653, 656 (2d Cir. 1980); Gallose, 878 F.2d at 84; Eggert v.
Norfolk & Western Ry. Co., 538 F.2d 509, 511 (2d Cir. 1976).
In support of their argument, defendants have submitted
extensive documentation regarding the investigation which was
conducted concerning plaintiff's EEO complaints. The
uncontroverted reports submitted by defendants show that
plaintiff's complaints were taken quite seriously and that
every single allegation which she made was fully investigated.
Moreover, as to those complaints capable of immediate
correction, such as the graffiti in the railroad cars, timely
remedial measures were taken. Defendants claim, however, that
the investigation was brought to a halt when plaintiff failed
to cooperate. Plaintiff admits that she failed to cooperate
with the investigation but claims that she did so because when
she went to speak with the EEO officer concerning her first
set of allegations, he said "tisk, tisk, tisk" while he was
reading through the nine page complaint. Masiello Dep. at 139.
Further, defendants have failed to indicate what action, if
any, was taken with respect to the oral complaint(s) plaintiff
claims to have made concerning the incidents of physical
abuse.*fn13 While the court acknowledges that the evidence on
the issue of negligence weighs extremely heavily in favor of
it finds that a reasonable jury — if it were to believe
plaintiff's reason for not cooperating with the EEO
investigation and that she did in fact lodge oral complaints of
physical abuse which went unanswered — could find defendants
at least slightly negligent in causing plaintiff's injuries.
The court has reviewed defendants' statute of limitations
argument and finds it to be without merit.
For the reasons set forth above, the court finds that
plaintiff has stated a cause of action under the FELA. In
addition, there is sufficient evidence for a jury to find that
defendants were at least slightly negligent under the
circumstances. Therefore, defendants' motion for summary
judgment is denied.