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.
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
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
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
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.
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
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.
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 ...