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February 4, 2005.


The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


This is an action by a former Long Island Railroad ("LIRR") worker for negligent and intentional infliction of emotional distress under the Federal Employers' Liability Act ("FELA")*fn1 and for employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII")*fn2 and parallel state and local laws. Discovery having been completed, defendant Page 2 moves for summary judgment dismissing the complaint.


  A. Plaintiff's Failure to Comply With Local Rule 56.1

  A preliminary matter must be addressed before getting to the pertinent facts.

  On a motion for summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.*fn3 In considering such a motion, all facts and inferences reasonably drawn therefrom are construed in favor of the nonmoving party.*fn4

  Local Civil Rule 56.1 of this Court, which is substantially similar to antecedents that have been in effect for many years, provides in relevant part as follows:
"(a) Upon any motion for summary judgment . . ., there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
"(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
"(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
"(d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)."
Page 3

 The purpose of the rule "is to assist the Court in understanding the scope of the summary judgment motion by highlighting those facts which the parties contend are in dispute."*fn5 In the absence of the required statements, "the Court is forced to scour the record on its own in a search for evidence which may support that party's contention that a certain fact is not in dispute."*fn6

  In order for a Rule 56.1 statement in opposition to a motion for summary judgment to serve this purpose, it must respond appropriately to the movant's statement. Thus, "[a] proper Rule 56.1 statement submitted by a non-movant should consist of a paragraph-by-paragraph response to the movant's 56.1 statement, much like an answer to a complaint" and must cite admissible evidence in support of the non-movant's contention that there is admissible evidence creating a genuine issue for trial.*fn7 And while it "is permissible for the non-movant to provide a separate statement, apart from this paragraph-by-paragraph response, in which it lists other facts it claims to be in dispute . . .[,] this separate statement is not a substitute for the paragraph-by-paragraph response. The non-movant, particularly if represented by counsel, should not leave it to the Court to cull from this separate statement the pieces of evidence which would support the contentions of Page 4 the non-movant asserted in its paragraph-by-paragraph response without citation."*fn8

  Defendant has submitted a seven page Rule 56.1 statement containing 44 numbered paragraphs, each of which properly cites evidence of record. Plaintiff's Rule 56.1 statement does not respond at all to 32 of defendant's paragraphs and responds to nine more only by asserting that the facts there stated are not relevant. Hence, the facts asserted in those 41 paragraphs of defendant's Rule 56.1 statement are deemed admitted.*fn9 The Court therefore accepts as true the assertions in all but paragraphs 13, 27, and 33 of defendant's Rule 56.1 statement as well as the stipulated facts contained in Section III of the joint pretrial order.

  B. The Evidence

  Plaintiff was hired by the LIRR in March 1996 as a third rail electrical traction helper and was the only female electrician at the railroad throughout her period of employment.*fn10

  1. The 1996 Manta Incident and the First Lawsuit

  In July 1996, plaintiff claimed that a male co-worker, Philip Manta, while under the influence of alcohol and/or cocaine, made sexually unwanted comments, propositioned her, and Page 5 touched her breasts with a knife. He then allegedly crossed the street, hired a prostitute, returned with the prostitute to the work place, and engaged in sexual intercourse with her in view of plaintiff and other LIRR employees.

  Shortly after the incident, plaintiff complained to LIRR supervisory personnel and, on August 1, 1996, submitted a complaint to the Equal Employment Opportunity Commission ("EEOC").*fn11 Disciplinary charges were brought against Manta and five other LIRR employees. Manta was fired and did not work at the LIRR for more than two years, until he was reinstated by an arbitrator.*fn12

  In June 1997, plaintiff sued the LIRR and Manta in the Eastern District of New York.*fn13 The complaint alleged that plaintiff had been subjected to sexual harassment, sexual assault, and retaliation and asserted claims under the FELA, Title VII, state and local employment discrimination laws, and other state law theories.

  On March 3, 2000, plaintiff and the LIRR settled the Eastern District action, and plaintiff, who received $27,000, gave the LIRR a general release of all claims and causes of action which she had up to the date of the release.*fn14 Page 6

  2. Subsequent Events

  (a) Manta

  When Manta was scheduled to return to work at the LIRR, plaintiff's supervisors told her that Manta was coming back and that they would "try [their] best not to have both of you in close contact."*fn15 Nevertheless, plaintiff had a number of encounters with Manta that are at issue here.

  First, on an occasion when plaintiff was digging a trench in the Jamaica station, perhaps in 2000, she emerged from under a platform "and there he was looking at me" from about ten feet away.*fn16 Manta said nothing and made no gestures.*fn17 Plaintiff, however, claims that she "freaked out and . . . was helped off the track" because she "froze, . . . couldn't move."*fn18

  Second, on four or five occasions, plaintiff saw Manta, who was employed in the same department, in a shop that she had to visit every morning to obtain materials.*fn19 On at least one of these occasions, "he was . . . laughing and carrying on . . ."*fn20 On none of these occasions, however, did Manta speak to plaintiff or vice versa.*fn21 Page 7

  Finally, in the summer of 2000, plaintiff was studying for an examination to become a block operator.*fn22 A two week class was offered to assist job candidates for block operator and boom truck jobs.*fn23 After plaintiff signed up to take the class, she learned that Manta was going to be in the class, which he had to take in order to requalify for his job.*fn24 Plaintiff complained to her supervisor, Mr. Puciloski.*fn25 Puciloski, however, said that his hands were tied "because in order for him [Manta] to get back on the rail he would have to requalify."*fn26 Although plaintiff could have elected to take the next class, six months later, she decided to go ...

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