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April 6, 2000


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 17.

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 263-65.

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 actions"). Notwithstanding 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 ...

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