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August 25, 1992


The opinion of the court was delivered by: MICHAEL B. MUKASEY



 Plaintiff, Dorothy Visconti, sues her employer, Consolidated Rail Corporation ("Conrail"), under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 ("FELA"), for both intentional and negligent infliction of emotional distress. Defendant moves for summary judgment. For the reasons set forth below, defendant's motion is granted, with leave for plaintiff to amend her complaint to allege sexual harassment should the facts justify such an allegation.


 Summary judgment is appropriate if the evidence demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Accordingly, the parties agree that for the purposes of this motion the Court should accept the version of the facts set forth in plaintiff's deposition testimony. *fn1"

 Plaintiff has been employed by Conrail and a predecessor corporation, the Central Railroad of New Jersey, since October 23, 1974. (Visconti Dep. at 4) *fn2" On April 15, 1991, plaintiff filed this suit alleging that she has suffered extreme emotional distress as a result of "continuous, unrelenting and vicious forms of harassment, verbal, visual, abuse and emotional harassment" by Conrail management. (Compl. PP 6, 7)

 The harassment allegedly began in June 1989, shortly after plaintiff injured her ankle at Conrail's South Kearney New Jersey Terminal. (Dep. at 44-45) According to plaintiff, "she was harassed by all the managers" at the South Kearney facility, initially because the injury tarnished the facility safety record. (Dep. at 45) Later, she was "harassed for harassment's sake." (Dep. at 290) In her testimony, plaintiff described a series of 54 "incidents of harassment."

 Incident 1: Plaintiff maintains that on the night of the injury she was "harassed" by Fran Palumbo, a Conrail supervisor, who was forced to forego a social engagement to help plaintiff complete various accident reports. (Dep. at 85) According to plaintiff, Palumbo did not know how to file the necessary reports and, as a result of her frustration, Palumbo "turned everything around," and reported plaintiff for insubordination and failure to cooperate. (Id.) Plaintiff filed a grievance with her union, the Brotherhood of Railway and Steamship Clerks ("union"), and was exonerated after a hearing. (Dep. at 57, 86)

 Incident 2: A week after the injury Kenneth Weber, a Conrail claims investigator, visited plaintiff's home to obtain a statement. According to plaintiff, Weber walked around and examined her property before knocking on the front door. (Dep. at 53-55)

 Once inside, Weber, who "was very forceful," took out a tape recorder and plaintiff's employment records and began questioning plaintiff about the accident. (Id.) Plaintiff informed Weber that she wasn't feeling well and after speaking to her attorney asked him to leave. (Id.)

 Incident 3: In September 1989, plaintiff returned to work as a gate clerk. One day shortly after her return, William Gallagher, her supervisor, left work early leaving plaintiff in charge of the gate operation. Later on that day there was an oil spill and plaintiff called Gallagher for help. Gallagher, however, was "belligerent" and refused to return to the terminal. Plaintiff threatened to report Gallagher to his supervisor and Gallagher replied that she would "'pay for this.'" (Dep. at 58-59)

 The next day plaintiff received three notices of investigation charging her with violations of various work rules. (Id.) One charge was dropped because of insufficient evidence. The other two were resolved through the grievance procedure established by the collective bargaining agreement. (Dep. at 60-61)

 Incident 4: In November 1989, Paul Birnbaum, another supervisor, called a junior clerk to work a shift that plaintiff, a senior employee, was entitled to work. Plaintiff filed a claim with the union that ultimately was resolved in her favor. (Dep. at 192)

 Incident 5: In February 1990, pursuant to a procedure set forth in the collective bargaining agreement, plaintiff "bid" into a clerk stenographer position displacing Betty Staples, the employee who held the job. Plaintiff claims that she then was harassed by Conrail managers who "liked and favored" Staples. (Dep. at 61)

 Shortly after plaintiff displaced Staples, Wayne Wagner, one of plaintiff's supervisors, "ran" out to her car as she was leaving for lunch and asked whether she had copied and removed any company payroll records. Plaintiff denied doing so; nevertheless, she later received a notice of investigation for tampering with confidential company records. (Dep. at 62-63)

 Following a hearing at which she was represented by the union, an administrative officer determined that plaintiff had reproduced and removed confidential company records without authorization and disqualified plaintiff from holding the position of clerk stenographer. (Dep. at 69, 70, 82-83) The hearing officer's determination was affirmed on appeal. (Dep. at 70)

 Incident 6: Plaintiff claims that in February or March 1990 Palumbo ordered plaintiff to leave the terminal because her shoes did not conform to company safety standards. The reader will recall that plaintiff already injured her ankle once, the event she claims loosed a torrent of harassment. (See p. 2, supra) In response, plaintiff informed a union representative who in turn called another of plaintiff's supervisors. The supervisor agreed to allow plaintiff to remain at work on condition that in the future she wear appropriate footwear. (Dep. at 74-76, 78-79)

 Incident 7: According to plaintiff, Palumbo allowed other clerks, including Betty Staples, to leave work early with pay for medical purposes but required that plaintiff take a personal day to visit her physician. When plaintiff brought this to Palumbo's attention two clerks previously paid were docked for time spent at the doctor. Plaintiff complains that this unfairly "put [her] in the spot of the bad guy." (Dep. at 78-79)

 Incident 8: According to plaintiff, Palumbo also harassed her by: having her revise letters "up to eight times, not for errors in typing but because [Palumbo] rearranged the wording"; making fun of plaintiff's clothes; "whispering" about plaintiff with other clerks; excluding plaintiff from conversations; and displaying an "unpleasant[] attitude" toward plaintiff. (Dep. at 77-78, 81)

 Regarding work assignments, plaintiff claimed Palumbo would assign other clerks the "more important typing of letters and other things while she had [plaintiff] do the lesser things such as filing or typing out envelopes or making a hundred copies of a particular item." (Dep. at 81)

 Incident 9: According to plaintiff, on one occasion Palumbo asked a junior employee to work a shift that plaintiff was entitled to work. Plaintiff's claim for three hours pay is pending. (Dep. at 86)

 Incident 10: While plaintiff was working as a clerk stenographer, Gallagher asked her to type various documents including letters denying three of her claims. According to plaintiff, Gallagher "laughed" as he dictated the letters.

 Plaintiff also maintains that Gallagher repeatedly accused her of improperly typing a document that another employee had typed. (Dep. at 90-94)

 Incident 12: One night while plaintiff was working the gate, Gil Mayer, a supervisor, brought her another employee's jacket because the heater in the gatehouse had malfunctioned. On completing her shift, plaintiff left the jacket in the gatehouse. Plaintiff contends that three months later Mayer wrongly accused her of stealing the jacket in the presence of other Conrail employees. (Dep. at 98-99)

 Incident 13: According to plaintiff, Birnbaum persistently harassed and "picked on" female employees. Plaintiff described Birnbaum's conduct as follows: "He used to raise his voice and try to use intimidating tactics. He told dirty jokes. He had foul language and it was disparity of treatment. He treated the men better than he did the women." (Dep. at 100-101)

 Incident 14: Plaintiff complains that Birnbaum frequently called her during her shifts at the South Kearney Terminal. According to plaintiff, Birnbaum would "pump her for information" about business at South Kearney and then discuss what he learned with other Conrail supervisors. (Dep. at 101-105)

 Incident 15: In March 1990, after she was disqualified from her position as a clerk stenographer, plaintiff took several weeks sick leave in order to "recuperate." Upon her return to active status, she attempted to obtain several jobs by "bumping" junior employees pursuant to the collective bargaining agreement. Plaintiff maintains that management prevented her from obtaining a suitable position. (Dep. at 112)

 Incident 16: In April 1990, plaintiff attempted to return to work at the South Kearney facility by bumping stenographer Lisa McGregor. When plaintiff arrived, Dan Borelli, a supervisor, informed her that she could not replace McGregor and demanded that she leave the terminal. When plaintiff refused, Borelli called the Conrail police who escorted her off Conrail property. (Dep. at 113-115)

 Plaintiff's grievance was denied because of her earlier disqualification for copying and removing confidential records. The union has appealed on plaintiff's behalf. (Dep. at 115-116)

 Incident 17: Following her unsuccessful attempt to return to South Kearney, plaintiff could obtain only "an inferior" janitorial position at Conrail's Oak Island, Newark facility. While working at Oak Island plaintiff filed a grievance against her supervisor, Jeff Harris, because on the day she was displaced by a senior employee, Harris sent her home in the middle of a shift. Plaintiff's claim is pending. (Dep. at 116-121)

 Incident 18: During plaintiff's employment at Oak Island, a male yard worker filled in for a stenographer who had taken two weeks leave. Believing she was entitled to the position, plaintiff filed a grievance. (Dep. at 121-123)

 Incident 19: Plaintiff returned to the South Kearney facility in September 1990. On September 19, 1990, a junior employee was called to work a shift plaintiff believed she was entitled to work. Plaintiff's grievance is pending. (Dep. at 127-128)

 Incident 20: Plaintiff's appeal of her suspension for removing confidential documents was denied on November 5, 1990. Upon receiving the notice, Borelli directed another Conrail employee to inform plaintiff that she must immediately begin serving the suspension. The employee called plaintiff at 4:30 ...

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