The opinion of the court was delivered by: Tenney, District Judge.
For the reasons set forth below, the court finds that: (1)
plaintiff has stated a cause of action under the FELA, and (2)
whether defendants were negligent is a question of fact to be
decided by a jury.
Summary judgment shall be granted if the pleadings and other
papers submitted show that "there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving
party has the initial burden of establishing the lack of any
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
However, where the nonmoving party bears the burden of proof at
trial — as in this case — it must come forward and show that
there is a genuine issue of material fact to be decided by the
factfinder. Id. at 324, 106 S.Ct. at 2553. See Thompson v.
Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).*fn1 In deciding a
summary judgment motion, all reasonable inferences and any
ambiguities must be drawn in favor of the party opposing the
motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curium). Accordingly,
for purposes of deciding this motion, the court will accept
plaintiff's factual allegations as true.
The record establishes that defendant Conrail employed
plaintiff as an engineer sometime prior to January 1,
1979.*fn2 On January 1, 1983, Conrail merged with
Metro-North. Since that time, plaintiff has continued working
as an engineer for Metro-North. Plaintiff claims that from the
time she qualified as an engineer, and up until the present,
she has been persistently subjected to various forms of sexual
harassment. Since February, 1987, plaintiff has filed three
Equal Employment Opportunity ("EEO") complaints for sexual
harassment with Metro-North's Director of Affirmative Action
alleging: (1) the existence of obscene graffiti in various
railroad cars, (2) the making of sexually suggestive comments
and noises over the railroad radio, (3) that she was sent home
for being five minutes late to work, (4) that she was harassed
for not wearing regulation boots on the job, (5) that she was
harassed about time she took off work due to illness, and (6)
that she was harassed by co-workers who told her she did not
know how to operate machinery properly.*fn3 Plaintiff also
claims to have been nonconsensually kissed, hugged, grabbed,
and picked up off the ground by her co-workers. Deposition of
Catherine Masiello, sworn to January 13, 1988, at 134-37,
Exhibit 1 to Affidavit of Fredric M. Gold (hereinafter
"Masiello Dep."). Although plaintiff allegedly made at least
one oral complaint of these assaults, id. at 138, no
allegations of physical abuse were included in any of her
written complaints. As a result of the above mentioned sexual
harrasment at work, plaintiff claims to suffer from a variety
of emotional and physical injuries including anxiety,
depression, and an ulcer.*fn4
[e]very common carrier by railroad while engaging
in [interstate] commerce . . . shall be liable in
damages to any person suffering injury while he
is employed by such carrier in such commerce . .
. for such injury . . . resulting in whole or in
part from the negligence of any of the officers,
agents, or employees of such carrier. . . .
45 U.S.C. § 51 (1988). Defendants argue that plaintiff's claim
of injuries resulting from sexual harassment is not covered
under the Act. There are strong arguments in favor of
defendants' position. Most notably, there is nothing in the
legislative history of the FELA which indicates that Congress
intended the statute to cover claims of sexual harassment.
Since presumably women did not usually work as railroad
engineers when the Act was passed in 1908, the proper inquiry
becomes whether this is the type of injury Congress would have
intended to be covered if it had considered it. In making this
determination, one must look to the original purpose of the
Act. The FELA was enacted in response to "the special needs of
railroad workers who are daily exposed to risks inherent in
railroad work and are helpless to provide adequately for their
own safety." Sinkler v. Missouri Pacific R.R. Co.,
356 U.S. 326, 329, 78 S.Ct. 758, 761, 2 L.Ed.2d 799 (1958) (citing
Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54, 63 S.Ct.
444, 87 L.Ed. 610 (1943)). The Act was designed to give
railroad workers a federal remedy for injuries caused by the
negligence of their employer or their co-workers, eliminate
several traditional defenses, and facilitate recovery in those
cases with merit. Atchison, Topeka & Santa Fe Ry. Co. v. Buell,
480 U.S. 557, 561, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987).
Since there is nothing about plaintiff's claim which makes it
unique to the dangers of working on the railroad, so the
argument goes, it is neither fair nor logical to allow her to
benefit from the FELA's relaxed proof requirements simply
because she happens to be a railroad employee.*fn5 In short,
the argument is that the FELA should cover injuries sustained
not while a plaintiff is employed by a railroad but because she
is employed by a railroad.*fn6 Although the court finds such
argument to be reasonable, a thorough review of precedent
The FELA is a broad remedial statute and should be
interpreted liberally in order to fulfill Congress' intent.
See Buell, 480 U.S. at 561-62, 107 S.Ct. at 1413-14; Urie v.
Thompson, 337 U.S. 163, 180-82, 69 S.Ct. 1018, 1029-31, 93
L.Ed. 1282 (1949); Jamison v. Encarnacion, 281 U.S. 635, 640,
50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930). While the statute is
to be given a broad interpretation, the intent of Congress is
still the controlling factor in deciding what is covered under
the statute and what is not. However, in discerning Congress'
intent, the Supreme Court has focused on the broad language of
the statute itself. Thus, in deciding that silicosis — a
pulmonary disease — was a cognizable injury under the FELA,
the Supreme Court noted:
Urie, 337 U.S. at 181, 69 S.Ct. at 1030 (citation omitted)
(emphasis added). After noting that the language of the FELA is
"as broad as could be framed," and that every injury suffered
by an employee because of the railroad's ...