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WAHLSTROM v. METRO-NORTH COMMUTER R. CO.
April 6, 2000
CORINNE WAHLSTROM, PLAINTIFF,
METRO-NORTH COMMUTER RAILROAD COMPANY AND WILLIAM CHAPMAN, DEFENDANTS.
The opinion of the court was delivered by: Leisure, District Judge.
Plaintiff Corinne Wahlstrom brings this action, alleging that
she was verbally and physically assaulted by a fellow employee,
defendant William Chapman ("Chapman"). Plaintiff seeks relief
against her employer, defendant Metro-North Commuter Railroad
Company ("Metro-North"), under the Federal Employers' Liability
Act, as amended, 45 U.S.C. § 51 et seq. ("FELA"), Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. ("Title VII"), the New York State Human Rights Law, N Y
Exec. Law § 296(1)(a) ("NYSHRL"), and the New York City Human
Rights Law, N.Y.C. Admin. Code § 8-107.1(a) ("NYCHRL"). Against
Chapman, plaintiff has alleged common law tort claims — namely
assault, battery, intentional infliction of emotional distress,
negligent infliction of emotional distress, and prima facie
tort. Following discovery, both defendants moved for summary
judgment. For the reasons set forth below, the defendants'
motions are granted in part and denied in part.
Plaintiff has been employed by Metro-North's Transportation
Department since June 1986. See Third Am. Compl. ¶ 21;
Wahlstrom Dep. at 72-73. Since July 1987, she has served as both
an assistant conductor and a conductor, depending on her schedule
and availability. See Wahlstrom Dep. at 74-76.
On April 22, 1996, plaintiff was working her third assignment
of the day, as an assistant conductor on Train 552, due to arrive
in New York City's Grand Central Station at 11:52 a.m. See
Third Am. Compl. ¶ 22; Wahlstrom Dep. at 172, 174-176. Also
assigned to the train were defendant Chapman, the engineer;
Timothy Gershner, the conductor; and Giusseppe Nicotra, the
junior assistant conductor. See Wahlstrom Dep. at 173-80. As an
assistant conductor, plaintiff reported to the
conductor and also assisted the engineer. See id. at 76.*fn1
While the train was waiting in railroad yard at Metro-North's
North White Plains station, and before passengers had boarded,
see id. at 177, plaintiff struck up a conversation with
Chapman, with whom she had occasionally worked in the past. See
id. at 49-52. She inquired about his recent vacation to Aruba
with his wife. See id. at 189-90. In an abrupt retort, Chapman
allegedly replied, "Why the fuck do you want to know? Are you
going to give me fucking sex?" Id. at 190; see also id. at
198-99. A bit shocked, Wahlstrom responded, "No. We are here on
professional terms," id. at 199, and walked away toward the
front of the train, see id. at 199-200, 249, 446. Nicotra, who
had been sitting across from Chapman, observed the entire
confrontation. See id. at 181-82; see also Nicotra Dep. at
With plaintiff's back turned, Chapman then allegedly arose from
his seat and came up behind her. See Nicotra Dep. at 48;
Wahlstrom Dep. at 252. According to plaintiff, he wrapped his
arms around her, grabbed her in a "bear hug," made a grunting
sound, and slapped her left buttock three times. See Wahlstrom
Dep. at 201, 252-54, 259, 275. Plaintiff forcefully pushed
Chapman away and told him to get away from her, before fleeing
toward the vestibule area of the train. See id. at 254, 257,
262. Despite being upset and nervous, she continued to perform
her duties to prepare the train for its departure. See id. at
Two or three minutes later, Chapman noticed plaintiff
supervising Nicotra, who was lining switches for the track. See
id. at 267. He ordered her to close the train door and shouted,
"What are you doing standing there with your thumb up your ass?"
Id. at 267. After moving the train up to the signal in the
yard, Chapman yelled out, "What are you stupid, bitch?"*fn2
Id. at 268; see also Third Am. Compl. ¶ 25. Again, plaintiff
continued to do her job, though she claims she collected fewer
tickets than she normally did. See Wahlstrom Dep. at 273.
Chapman did not say anything else inappropriate during the rest
of the ride. See id. at 270. However, after the train reached
New York City's Grand Central Station and plaintiff began her
walk up the ramp toward the terminal, Chapman allegedly remarked,
"You better shape up, Corinne, or you're going to get it." Id.
at 271.; see also Third Am. Compl. ¶ 25.
On the platform, plaintiff approached one of her supervisors to
tell him about Chapman's inappropriate conduct. Because he was
otherwise engaged in work, however, she informed him that she
would discuss the matter with him later. See id. at 271-72.
Plaintiff then proceeded to the women's locker room in tears,
where she told several co-workers of the assault. See Dorien
Dep. at 10-15; Mahony Dep. at 811, 52-53; Wahlstrom Dep. at
280.-81. One of her co-workers, Annmarie Mahony, telephoned
Metro-North's Manager of Workforce Diversity, Maryann
Gormley-O'Connor, and asked her to come to the locker room. See
Gormley-O'Connor Dep. at 108; Mahony Dep. at 8, 12. Upon
arriving, Gormley-O'Connor helped calm plaintiff down and took
her back to her office. See Gormley-O'Connor Dep. at 108-09;
Mahony Dep. at 10-11. Plaintiff explained what had happened and
asked to speak with an Employee Assistance Program counselor.
See Wahlstrom Dep. at
213-14, 289-92. Yet, she declined to file a formal internal
discrimination complaint against Chapman. See id. at 292-93;
Koenigsberg Decl., Exh. A ("Report"), at 2.
After meeting with plaintiff, Ms. Gormley-O'Connor interviewed
Chapman and Nicotra*fn3 later that day and on April 23, and
notified Metro-North management of the incident. See Chapman
Dep. at 63, 130; Gormley-O'Connor Dep. at 106-07; Nicotra Dep. at
15; Report at 2. During her interview with Chapman, she gave him
a copy of Metro-North's sexual harassment policy and directed him
to stay away from and not retaliate against plaintiff and to
comply with the policy in the future. See Chapman Dep. at 158;
Gormley-O'Connor Dep. at 85, 186; Report at 5. Thereafter, she
recommended that a formal investigation be brought against
Chapman, see Gormley-O'Connor Dep. at 190; Report at 6, and
suggested that Chapman and plaintiff be separated until the
conclusion of the investigation, see Gormley-O'Connor Dep. at
95. On April 26, 1996, Chapman was charged with conduct
unbecoming a Metro-North employee and violation of Metro-North's
sexual harassment policy. See Koenigsberg Decl., Exh. G. After
numerous postponements,*fn4 a formal hearing was held on May 30,
1996, during which plaintiff, Chapman, Nicotra, and Mr. Joseph R.
Pasanello, plaintiff's immediate supervisor, testified. See
id., Exh. E.
Plaintiff maintains that this was not the first time she had
been harassed by Chapman. In the first alleged incident, which
she admits she never reported, plaintiff claims that Chapman put
his arms around her. See Wahlstrom Dep. at 31-32, 291-92. The
second time, Chapman allegedly touched her leg, although
plaintiff does not recall when the incident took place, nor did
she report it. See id. at 36-39. Neither episode, plaintiff
concedes, involved inappropriate language or sexual innuendo.
See id. at 31, 36.
On June 6, 1996, Chapman was informed that he would be
suspended without pay for forty-five days, beginning June 25,
1996, and would be required to attend Metro-North's June 19, 1996
sexual harassment workshop. See Chapman Dep. at 64, 196;
Koenigsberg Decl., Exh. Q; id. Exh. S., at 28. His suspension
was later upheld by Lead Trainmaster J.W. Swanberg, see
Koenigsberg Decl., Exh. U, and the Special Board of Adjustment,
see id. Exh. V. Plaintiff was formally notified of the outcome
of these proceedings on July 19, 1996. See id., Exh. R.
While Metro-North's disciplinary process was ongoing, on May
21, 1996, plaintiff filed criminal charges against Chapman. See
id., Exh. K; Wahlstrom Dep. at 451-53; see also Koenigsberg
Decl., Exh. M. Thirty days later, she received a Temporary Order
of Protection, forbidding Chapman from further harassing,
intimidating, or threatening her. See id., Exh. L; Wahlstrom
Dep. at 327-28. On December 16, 1996, a North Castle Town Justice
found Chapman guilty on the charge of third degree sexual abuse — a
class A misdemeanor under N.Y. Penal Law § 130.55 — and ordered him
to pay a $1,000 fine and a $90 surcharge. See id., Exh. O, at
3; see also id., Exh. N.*fn5
Following the end of his suspension and a routine physical
exam, Chapman returned to service with Metro-North on August 19,
1996. See id., Exh. F. Since the April 22, 1996 incident,
plaintiff has not been sexually harassed or subjected to
inappropriate behavior or language from Chapman. See Wahlstrom
Dep. at 30, 248. Nor has Chapman been the subject of any sexual
harassment complaints or, for that matter, any other disciplinary
action. See Chapman Dep. at 64, 279; Sinigiani Dep. at 49.
Plaintiff avers that because she continued to be fearful and
anxious, she endeavored to avoid Chapman at all costs. She
learned, however, that Metro-North would not transfer Chapman and
that, if she wanted to avoid working with him, she would have to
rearrange her schedule. See id. at 114-15, 239-42. She
therefore claims to have declined more financially rewarding
assignments and added one hundred miles to her daily commute in
order to avoid him. See id. at 114, 171, 487. As such,
plaintiff has neither worked with nor spoken to Chapman since the
incident. See id. at 244, 372.
On May 14, 1996, plaintiff filed the instant action against
Metro-North, alleging claims under FELA. See Compl.*fn6
Subsequently, the parties agreed to allow plaintiff to file a
Second Amended Complaint, which added state common law claims
against Chapman. See Stipulation, dated Feb. 6, 1997; Second
Am. Compl. ¶¶ 33-40. Plaintiff also timely filed written charges
of discrimination with the Equal Employment Opportunity
Commission, see Third Am. Compl. ¶ 11, and, on March 27, 1997,
received a Notice of Right to Sue, see id. ¶ 12. Thereafter,
the parties again stipulated to permit plaintiff to further amend
her Complaint, this time adding Title VII, NYSHRL, and NYCHRL
claims against Metro-North. See Stipulation, dated June 4,
1997; Third Am. Compl. ¶¶ 43-45. Finally, on August 15, 1997,
Metro-North filed a cross-claim against Chapman seeking
indemnification. See Notice of Cross Claim, dated Aug. 15,
1997. Following discovery conducted under the supervision of the
Honorable Leonard Bernikow, United States Magistrate Judge, both
defendants moved for summary judgment.*fn7
I. Standard for Summary Judgment
A moving party is entitled to summary judgment if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, 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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Holt v.
KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996). The
moving party bears the burden of demonstrating that no genuine
issue of material fact exists. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Gallo
v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d
Cir. 1994). "In moving for summary judgment against a
party who will bear the ultimate burden of proof at trial, the
movant's burden will be satisfied if he can point to an absence
of evidence to support an essential element of the nonmoving
party's claim." Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995).
In deciding a motion for summary judgment, the Court's function
is not to try issues of fact, but instead to determine whether
there remain any such issues to try. See Sutera v. Schering
Corp., 73 F.3d 13, 15-16 (2d Cir. 1995). In doing so, the Court
must resolve all ambiguities and draw all justifiable inferences
in favor of the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
see also Holt, 95 F.3d at 129. However, the substantive law
governing the case will identify those facts that are material,
and "[o]nly disputes over facts that might affect the outcome of
the suit under the governing law will preclude the entry of
summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
"A `genuine' dispute over a material fact only arises if the
evidence would allow a reasonable jury to return a verdict for
the nonmoving party." Dister v. Continental Group,
859 F.2d 1108, 1112 (2d Cir. 1988) (quoting Anderson, 477 U.S. at 248,
106 S.Ct. 2505). Thus, the nonmoving party "must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
"Mere speculation or conjecture" will not suffice, see Western
World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.
1990), nor will "reliance on unsupported assertions," Goenaga,
51 F.3d at 18. Rather, the nonmoving party must provide "concrete
evidence from which a reasonable juror could return a verdict in
[her] favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505.
II. Plaintiff's FELA Claims
Under FELA, a railroad engaged in interstate commerce is liable
to "any person suffering injury while [s]he is employed by [the
railroad] . . . for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or
employees of [the railroad]." 45 U.S.C. § 51. The Act requires
covered employers "to provide its employees with a reasonably
safe place to work." Sinclair v. Long Island R.R., 985 F.2d 74,
76 (2d Cir. 1993). As a remedial statute, a cause of action under
FELA is "broader than those available under principles of
common-law negligence." Goldwater v. Metro-North Commuter R.R.,
101 F.3d 296, 298 (2d Cir. 1996). Toward this end, the federal
courts have "liberally construed" FELA to allow employee
recovery. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532,
543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).
Based on these principles, the Second Circuit has placed a
particularly heavy burden on parties seeking summary judgment on
FELA claims. As the Court of Appeals stated in Gadsden v. Port
Auth. Trans-Hudson Corp., 140 F.3d 207, 209 (2d Cir. 1998),
"[u]nder the FELA, `the case must not be dismissed at the summary
judgment phase unless there is absolutely no reasonable basis for
a jury to find for the plaintiff.'" (quoting Syverson v.
Consolidated Rail Corp., 19 F.3d 824, 828 (2d Cir. 1994)).
Indeed, this Court recently noted that "[w]ith respect to the
traditional common-law negligence elements embodied in FELA, . .
. the proof requirements under FELA are substantially relaxed as
compared with common-law negligence claims, so as to promote
submission of FELA claims to a jury for decision." Kelly v.
Metro-North Commuter R.R., 37 F. Supp.2d 233, 237 (S.D.N.Y. 1999)
(Leisure, J.); see also Eggert v. Norfolk & W.R.R. Co.,
538 F.2d 509, 511 (2d Cir. 1976) ("[T]he role of the jury is
significantly greater in FELA cases than in common law negligence
these considerations, to survive summary judgment, a plaintiff
"`must at least offer some evidence that would support a finding
of negligence.'" Sinclair, 985 F.2d at 77 (quoting O'Hara v.
Long Island R.R., 665 F.2d 8, 9 (2d Cir. 1981) (per curiam)).
A. Metro-North's Knowledge of Chapman's Propensities
Plaintiff pleads claims of negligent retention and supervision
of an employee, see Third Am. Compl. ¶¶ 40-41, as well as
negligent infliction of emotional distress, see id. ¶ 42. To
succeed on these negligence claims, plaintiff must demonstrate
that Metro-North "knew or should have known prior to the assault
of propensities of the assailant to commit such assaults."
Harrison v. Missouri Pac. R.R. Co., 372 U.S. 248, 249, 83 S.Ct.
690, 9 L.Ed.2d 711 (1963); see also Green v. River Terminal Ry.
Co., 763 F.2d 805, 808-09 (6th Cir. 1985) ("A railroad has no
liability for an assault by one employee upon another in the
absence of notice of the assaulter's `vicious propensities'. . .
."); Besta v. Consolidated Rail Corp., 580 F. Supp. 869, 870
(S.D.N.Y. 1984). Plaintiff's burden is thus two-fold: She must
show both that (1) Chapman had a propensity for "the type of
behavior that caused plaintiff's harm," and (2) Metro-North knew
of this propensity. Ross v. Mitsui Fudosan, Inc., 2 F. Supp.2d 522,
532 (S.D.N.Y. 1998) (Leisure, J.).
Plaintiff submits that Chapman's propensity for such assaults
is evidenced by his March 2, 1989 arrest, after which he was
charged with two counts of sexual abuse of a minor and one count
of endangering the welfare of a minor. See Koenigsberg Decl.
Filed Under Seal ("Sealed Decl."), Exh. B. The purported victims,
aged 13 and 14, accused Chapman of sexually assaulting them while
on board Metro-North trains. See id., Exh. C. Metro-North
immediately suspended Chapman. See id., Exh. D. A formal
investigation was scheduled for March 14, 1989, but was postponed
at the request of Chapman's union, to be rescheduled following
the completion of the criminal proceedings. See id., Exh. F;
Bova Dep. at 19; Chapman Dep. at 259.
However, on July 27, 1989, after deliberating for a mere ten
minutes, the jury found Chapman not guilty. See Chapman Dep. at
259, 320. Two weeks later, Chapman's attorney informed the union
that his client had been found not guilty on all charges. See
Sealed Decl., Exh. G. He also telephoned Richard Sinigiani, the
highest ranking manager in Metro-North's Transportation
Department, and advised Sinigiani's administrative assistant that
Chapman's accusers had been involved in a "similar situation in
another town" and explained that the charges against Chapman were
the result of an incident in which the two boys "said they'd get
even with him" after he intervened in their attempt to "push an
older woman off the train." Id., Exh. H; see also Chapman
Dep. at 248-49, 321-22. After receiving this information,
Sinigiani canceled the formal investigation. See Sealed Decl.,
Exh. I; Bova Dep. at 25-26; Sinigiani Dep. at 29-35. On August
23, 1989, Chapman was cleared to return to service, following
completion of a standard work physical. See Sealed Decl., Exhs.
J-K; Chapman Dep. at 60-63.
The fact that Chapman was arrested and tried on charges of
sexual abuse raises a substantial issue of material fact as to
whether Chapman had a propensity to commit similar assaults
onboard Metro-North trains. Although plaintiff provided no
evidence that these alleged assaults did in fact occur, because
the Court is required to draw all inferences in plaintiff's
favor, and in light of the presumption in favor of reserving FELA
issues for the jury, the Court cannot say, as a matter of law,
that Chapman had no propensity for misbehavior.
Furthermore, notwithstanding Metro-North's denial of having had
"actual knowledge" that Chapman had done anything wrong prior to
April 22, 1996, see
Metro-North Mem. at 21, this issue too is properly within the
province of the jury. Unlike Persley v. National R.R. Passenger
Corp., 831 F. Supp. 464, 468 (D.Md. 1993), where the court found
no evidence indicating that an employee alleged to have sexually
harassed the plaintiff "had ever committed any act even arguably
similar to a sexual or other assault" prior to the date of the
incident, it is undisputed that the highest managers in
Metro-North's Labor and Transportation Departments were informed
of Chapman's arrest, yet dropped the investigation upon his
acquittal.*fn8 It may be true that Metro-North did not know for
sure whether such molestation actually occurred. Nevertheless,
once a reasonable suspicion has been raised, an employer cannot
avoid liability by shielding its eyes to the facts. Although
Metro-North has proffered a rational explanation for its
decision — that the ...