The opinion of the court was delivered by: NEAL P. MCCURN
Plaintiff Jessy J. Wilson, Sr. ("Wilson") commenced this action against his employer, Consolidated Rail Corp. ("Conrail"), pursuant to the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51-60, to recover damages for injuries he sustained while employed by Conrail. Mr. Wilson alleges that he sustained these injuries "as a result [,wholly or in part,] of the negligent acts and omissions of the defendant, its officers, agents and employees." See Plaintiff's Complaint at P 6. Now that discovery has been completed, Conrail moves to have this court grant summary judgment in its favor on the ground that "the Conrail conduct of which Wilson complains is not actionable under the FELA." See Defendant's Memorandum of Law at 3. The court heard oral argument on this motion on January 5, 1993. The following constitutes its findings of facts and conclusions of law.
Mr. Wilson has been employed by Conrail in various capacities since 1974. See Wilson Deposition ("Tr.") at 9. In 1985, Mr. Wilson was promoted to Supervisor of Materials at Conrail's Dewitt Yard in Syracuse, New York. Subsequently, in 1989, he was transferred to Conrail's Selkirk Yard in Selkirk, New York, as Supervisor of Materials. See Tr. at 11-12. In this capacity, his duties included, among other things, the supervision of 12 to 18 employees. See Tr. at 15. According to Mr. Wilson, as
Plaintiff's Memorandum of Law at 1-2 (emphasis in original).
Although not specifically enumerated in his complaint, Mr. Wilson's memorandum of law sets forth the acts of harassment upon which he bases his cause of action:
(1) Plaintiff's immediate supervisor, Larry Feuerstein, subscribed to the philosophy of deliberately antagonizing his employees (Deposition Transcript of Plaintiff, taken January 8, 1992, at page 27).
(2) Plaintiff had been told that "Feuerstein was also 'selling me down the tubes. More-or-less blaming me for the problems at Selkirk. . . . The moral [sic] problems, vandalism problems, they did some -- they were putting graffiti on Larry's door; certain things like that. That overall problem at Selkirk was -- I was told that from other superiors at Conrail that Larry was saying that I was the cause of the problem.'" (Plaintiff's Deposition at pg. 39). . . .
(3) On at least one occasion, plaintiff had to mark off sick as a result of the harassment and pressure being placed upon him by both Larry Feuerstein and his supervisor, Joseph Garczynski; the harsh treatment and harassment continued the day after he returned from being sick and he was criticized for having had to be off sick. (Plaintiff's Deposition at pp. 55 and 56).
(4) Plaintiff was made the "company witness" at almost all accident investigations and was directed to testify falsely if it would ensure that the findings would be against the employee. (Affidavit of Jessy J. Wilson, Sr., dated November 24, 1992, para. 14). The course of harassment directed at him intensified as soon as it became apparent that he (plaintiff) would not do so, and culminated in his being targeted for blame following the so-called "fume incident." Wilson Affidavit, para. 8.
See Plaintiff's Memorandum of Law at 3.
In response to these allegations, Conrail contends that even if these actions can be characterized as "harassment," they do not establish the outrageous or unconscionable employer conduct which is a prerequisite to a cognizable ...