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March 30, 2004.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


In this diversity action, two former inmates of a federal community confinement center operated by defendant Correctional Services Corporation ("CSC"), a private company under contract with the federal Bureau of Prisons ("BOP"), brought suit alleging that CSC was negligent in hiring, retaining, training, and supervising an employee whom plaintiffs allege sexually abused them. CSC has now moved for summary judgment pursuant to Fed.R.Civ.P. 56. The parties have consented to disposition of (his matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, CSC's motion is granted in part and denied in part.


  A. Factual Background

  In considering CSC's motion for summary judgment, the Court accepts as true the plaintiffs' version of the facts where supported by admissible evidence and draws all factual Page 2 inferences in the plaintiffs' favor. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).*fn1

  1. Le Marquis Community Correctional Center

  Le Marquis Community Correctional Center ("Le Marquis") was a "halfway house" for federal and state prisoners who had not yet completed their prison terms. See Affidavit of Josette Nelson-Dabo in Support of Correctional Services Corporation's Motion for Summary Judgment, dated November 18, 2003 ("Nelson-Dabo Aff.") (reproduced in Notice of Motion, filed November 19, 2003 (Docket #47) ("Notice of Motion")), ¶ 8. It was operated by CSC, a private company, pursuant to a written contract with the BOP and in accordance with guidelines set forth by the BOP. Id; see Statement of Work, dated December 1992 ("BOP Statement of Work") (reproduced as Exs. 13-17 to PL 56.1).

  Plaintiffs Yvette Adorno and Stephanie Womble became residents at Le Marquis in August and September 1998, respectively. Deposition of Yvette Adorno, June 26, 2003 ("Adorno Dep.") (reproduced in part as Ex. I to Nelson-Dabo Aff. and in part as Ex. 2 to PL 56.1), at 11; Deposition of Stephanie Womble, July 3, 2003 ("Womble Dep.") (reproduced in Page 3 part as Ex. J to Nelson-Dabo Aff. and in part as Ex. 3 to Pl. 56.1), at 7, 110-11. They claim that, after arriving at Le Marquis, they were sexually assaulted by Miguel Correa, an employee of CSC who worked at Le Marquis as Resident Advocate. See generally Further Amended Verified Complaint, filed January 7, 2003 (Docket #25) (reproduced as Ex. A to Nelson-Dabo Aff.), ¶¶ 24, 26, 40, 42.

  2. Conduct Against Adorno

  On November 13, 1998, at approximately 7:00 or 8:00 p.m., Adorno reported to Correa's office to discuss an infraction she had allegedly incurred. Adorno Dep. at 50, 53-54; Pl. 56.1 ¶ 4. As Resident Advocate, one of Correa's responsibilities was to investigate "incident reports" for each resident and to ensure that his or her tights were not being violated. Correctional Services Corporation Position Description: Resident Advocate (Resident Advocate Job Description") (reproduced as Ex. D to Nelson-Dabo Aff. and as Ex. 11 to Pl. 56.1). Correa had a private office on the second floor of Le Marquis. Deposition of Josette Nelson-Dabo, July 31, 2003 ("Nelson-Dabo Dep.") (reproduced in part as Ex. H to Nelson-Dabo Aff. and in part as Ex. 1 to Pl. 56.1), at 50.

  While in Correa's office, Adorno claims that Correa picked up her shirt, touched her breasts, made various inappropriate sexual comments, and initially refused to let her leave his office. Adorno Dep. at 66-70, 72. Adorno states that she was permitted to leave Correa's office only because she had to be present in her room for roll-call at 9:00 p.m. but that he instructed her to return to his office immediately thereafter. Id. at 69-70, 72. At approximately 10:00 p.m., following roll-call, Adorno returned to Correa's office. Id. at 76, 78. When Adorno returned, Correa allegedly kissed her and pushed his body up against hers. Id. at 84. Adorno claims that Page 4 Correa let her leave only after she threatened to scream and promised not to report the incident. Id.

  Adorno did not report the incident to any CSC or BOP officials, including the Facility Administrator at Le Marquis, Josette Nelson-Dabo. Id. at 76, 81, 101-02. The number to contact the BOP was posted throughout Le Marquis, including in the female recreation room and in the cafeteria. Nelson-Dabo Dep. at 58. In addition, a representative from the BOP had explained to the residents at an orientation meeting that if they were having problems with a CSC employee they should call the BOP directly. Nelson-Dabo Aff. ¶ 21. Adorno testified that she did not report the incident because Nelson-Dabo had threatened to return any resident who complained about conditions at Le Marquis to federal prison. Adorno Dep. at 101-02; accord Deposition of Susan Scainetti ("Scainetti Dep.") (reproduced in part as Ex. 6 to Pl.56.1), at 104, 127-28 (testifying that Nelson-Dabo had made such threats and that Nelson-Dabo had sent a resident back to federal prison after that resident complained about conditions at Le Marquis). Adorno did tell another Le Marquis resident about the incident a day after it occurred. Adorno Dep. at 76, 93-94; Scainetti Dep. at 145-46.

  According to Adorno, this incident has caused her to experience anger, mood swings, feelings of distrustfulness toward men, and problems being intimate with men. Adorno Dep. at 127, 136-37. Adorno has sought psychiatric counseling and therapy concerning these problems. Id. at 122-24, 141. According to one psychiatrist, Adorno suffers from post-traumatic stress disorder caused by Cornea's actions. See Psychiatric Evaluations, dated October 19, 2000 ("Adorno Psychiatric Evaluations") (reproduced as Ex. 4 to Pl.56.1), at 10. Page 5

  3. Conduct Against Womble

  Womble was a resident at Le Marquis from the end of September 1998 through December 1998. Womble Dep. at 7-8, 83, 110-11. During her stay, she met with Correa in his office approximately 12 times to discuss various infractions. Id. at 130. Womble alleges that over the course of these meetings, Correa made various sexually inappropriate remarks. Id. at 131-34. On approximately three such occasions, Correa allegedly hugged Womble and placed his hands on her clothes over her breasts. Id. at 144-45. In addition, Womble states that Correa touched her buttocks on one occasion. Id. at 145, 150.

  After about the fifth such encounter, Womble told Ms. Arias, her Case Manager at Le Marquis and a CSC employee, see Nelson-Dabo Dep. at 26, that Correa had "been harassing me and putting his hands on me every time I go into his office," Womble Dep. at 160. Pursuant to guidelines established by the BOP, CSC had instituted procedures by which Case Managers were required to report to their supervisors incidents of alleged sexual abuse, even if these allegations were unsubstantiated. See Deposition of Jack Brown, September 26, 2003 ("Brown Dep.") (reproduced in part as Ex. A to Def. Reply Mem. and in part as Ex. 9 to Pl.56.1), at 54-55; Nelson-Dabo Dep. at 60-62; see also BOP Statement of Work ch. 2, at p. 13, ¶ 6 (requiring that CSC report to the BOP any instance of sexual abuse by a CSC employee). At some point between her conversation with Womble and Thanksgiving Day 1998, Arias left her position at Le Marquis. Womble Dep. at 160. There is no evidence that Arias ever reported Womble's complaint to her supervisors. Nelson-Dabo Dep. at 62.

  Womble alleges that, a day or two after Thanksgiving Day 1998, she was raped by Correa. Womble Dep. at 162-63. According to Womble, Correa called her into his office at Page 6 approximately 8:30 p.m. Id. at 163, 177. Correa rose from his chair, walked to Womble, and kissed her. Id. at 178-80. Womble pushed him away, left his office, and went to a bathroom a few steps down the hall. Id. at 178-81. Correa then entered the bathroom, grabbed Womble from behind, and raped her. Id. at 182-86. When leaving the bathroom, Correa told Womble not to say anything to Nelson-Dabo about the encounter or else Womble would be sent back to federal prison. Id. at 188-89.*fn2

  Womble did not report the rape to Nelson-Dabo, to other Le Marquis officials, or to the police. Id. at 193, 218-19. She testified that she did not do so because Nelson-Dabo had threatened residents that if they engaged in any sexual activity or if they did not like the way Le Marquis was operated, they would be returned to federal prison. Id. at 193, 202-03. In addition, Womble testified that she believed these threats to be founded based on her recollection of an incident in which a resident voiced complaints and was subsequently docked various privileges. Id. at 155-56.

  Because of the rape and the others incidents with Correa, Womble states that she has suffered physical pain and emotional suffering. Id. at 179, 185, 187-88, 207-08, 224-25, 236. Page 7 She has since been treated for chlamydia, a sexually transmitted disease that she states she did not have prior to the rape. Id. at 214-15. She has sought psychiatric counseling and therapy. Id. at 18, 225. According to one psychiatrist, Womble suffers from post-traumatic stress disorder caused by Correa's sexual abuse and rape. See Psychiatric Evaluations, undated ("Womble Psychiatric Evaluations") (reproduced as Ex. 5 to Pl.56.1), at 37.

  4. Hiring, Transfer, and Termination of Correa

  CSC hired Correa for the position of Resident Supervisor at Le Marquis on November 20, 1997. Brown Dep. at 18-19. CSC's requirements for the position of Resident Supervisor, whose responsibilities essentially were to monitor and supervise the activities of residents, were a high school diploma or GED and one year of "supervisory experience in a human service field." Position Description/Qualifications: Resident Supervisor (reproduced as Ex. 10 to Pl.56.1); see Nelson-Dabo Dep. at 20-21; Brown Dep. at 14.

  By March 10, 1998, Correa had been transferred to the position of Resident Advocate. Brown Dep. at 36-37. CSC's requirements for the position of Resident Advocate were a high school diploma or GED and one year of "experience in [the] area of security." Resident Advocate Job Description; see Brown Dep. at 33. In addition, applicants for the position had to successfully pass a security background investigation. Resident Advocate Job Description; see Nelson-Dabo Aff ¶ 9. The BOP, which approved these requirements, conducted a background investigation on Correa prior to his transfer. Nelson-Dabo Aff. ¶¶ 9-10; Brown Dep. at 53-54. This check, which consisted of ...

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