The opinion of the court was delivered by: Steven M. Gold United States Magistrate Judge
GOLD, S., United States Magistrate Judge
Plaintiff brings this action asserting claims under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51, and 42 U.S.C. § 1983 and pursuant to state, city and common law. Defendants have moved for summary judgment, and plaintiff has cross-moved, seeking entry of a default judgment against defendant Sokira, vacatur of an arbitration decision imposing discipline on her, and leave to amend if the court finds any causes of action in her complaint deficient.*fn1
For the reasons that follow, defendants' motion is granted in part and denied in part and plaintiff's motion is denied in its entirety.
Plaintiff, Melissa Stampf, began working for the Long Island Rail Road ("LIRR") in 1992. Def. R.56.1 ¶ 1. Since 1995, she has worked as a locomotive engineer. Id. ¶ 2.
Plaintiff's primary claims are that she was falsely arrested and maliciously prosecuted.
Plaintiff was arrested on August 3, 2006, based on events that took place approximately four weeks earlier. It is undisputed that, on July 10, 2006, Angela Trigg, a fellow LIRR employee, complained to a supervisor, Rod Brooks, that Stampf had inappropriately touched Trigg's breast. Id. ¶ 4; see also Pl. R.56.1 ¶ 4. It is also undisputed that Stampf in fact touched Trigg on July 9, 2006. See LIRR Statement of Facts, Docket Entry 44-11 at 19-29. The type of touch, however, is hotly contested. According to Trigg, Stampf grabbed and shook Trigg's breast. See MTAPD Incident Report, Docket Entry 44-11 at 38; LIRR Statement of Facts, Docket Entry 44-11 at 20 (transcript of interview between Scott Petraglia, Trial Officer, and Angela Trigg). Stampf denies touching Trigg's breast and contends that she touched Trigg only on her shoulder. See LIRR Statement of Facts, Docket Entry 44-11 at 23-25 (transcript of interview between Scott Petraglia and Melissa Stampf); Stampf Dep. at 37-43, Docket Entry 56-19.
The LIRR conducted an investigation into Trigg's allegations. Def. R.56.1 ¶¶ 5-8; see also LIRR Statement of Facts, Docket Entry 44-11 at 18-30 (transcript of interviews by Scott Petraglia, Trial Officer). On July 12, 2006, after concluding that Stampf's actions violated its rules, the LIRR suspended Stampf for twenty days as a penalty for Conduct Unbecoming an Employee. Def. R.56.1 ¶ 10; see also Docket Entry 56-24. Stampf's union grieved the disciplinary charge on her behalf. An arbitration panel found that Stampf had improperly touched Trigg's breast, but reduced her suspension from twenty to ten days. Docket Entry 56-22 at 3.
It is also undisputed that on August 1, 2006, Trigg reported to the MTA police that Stampf had "grabbed [her] left breast and shook it" in July. Docket Entry 44-11 at 38; see also Def. R.56.1 ¶ 17. The MTA police filed an incident report accompanied by Trigg's written statement, signed under penalty of perjury. Docket Entry 44-11 at 38; Docket Entry 56-3. On August 3, 2006, Trigg informed MTA Police Officer James Sokira that she had filed a complaint against a co-worker who was currently in the West Side Yard. Def. R.56.1 ¶ 19. Officer Sokira contacted the desk officer who read the incident report to him. Id. ¶ 20. MTA Police Lieutenant Pedoty then instructed Sokira to place Stampf under arrest. Id. Stampf was handcuffed and charged with forcible touching and sexual abuse. MTAPD Incident Report, Docket Entry 44-11 at 39. The Manhattan District Attorney ultimately declined to prosecute. Docket Entry 56-1.
In addition to her false arrest and malicious prosecution claims, Stampf alleges that she was subjected to discrimination because the disciplinary sanction imposed on her was harsher than the discipline imposed on two white, heterosexual males accused of similar inappropriate sexual conduct involving Trigg. As noted above, Stampf -- who is female, homosexual and Asian -- received a ten-day suspension for her conduct. Prior to her incident with Stampf, Trigg accused two male co-workers of inappropriate sexual conduct. In August, 2005, Trigg accused Matt Schrader of touching her buttocks. Pl. R.56.1 Counterstatement ¶ 90. Schrader signed a LIRR form called a "Trial Waiver and Last Chance Agreement" and received a five-day suspension for engaging in "Conduct Unbecoming" by violating the LIRR's anti-harassment policy. Id. ¶¶ 99, 101, 102; see also Docket Entry 44-11 at 34-35. In April, 2006, Trigg accused Gerard DiCecco of making inappropriate comments about her breasts. Pl. R.56.1 Counterstatement ¶ 105. DiCecco also signed a trial waiver and last chance agreement and received a five-day suspension for Conduct Unbecoming. Id. ¶¶ 114, 116, 117. Stampf asserts that she was not offered a trial waiver and last chance agreement by the LIRR, and that she was taken out of service without pay while the investigation into her conduct was pending, whereas Schrader and DiCecco were not. Id. ¶¶ 103-04, 118-19, 128-29.
Summary judgment is appropriate where "there is no genuine issue as to any material fact." FED. R. CIV. P. 56(c). An issue of fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; see also Citizens Bank of Clearwater v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). In reaching a summary judgment determination, the court must resolve ambiguities and draw reasonable inferences in favor of the nonmoving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). The moving party bears the initial burden of establishing that there are no genuine issues of material fact; once he does so, the non-moving party may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. Anderson, 477 U.S. at 256; Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir. 1996). Mere conclusory allegations, however, are insufficient and "[t]here must be more than a 'scintilla of evidence'" to defeat a motion for summary judgment. Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252).
I begin my analysis with plaintiff's false arrest claim because at least three of the causes of action set forth in her amended complaint -- a FELA claim for emotional damages based on the arrest, a § 1983 claim for false arrest, and a common law claim for false arrest -- hinge on whether Stampf's arrest by Sokira was lawful. Am. Compl. ¶¶ 17-28, 36-44, 46-49.
Probable cause is a complete defense to a claim of false arrest, whether the claim is brought pursuant to § 1983 or state law. Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir. 2002); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Zanghi v. Inc. Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985). The question of probable cause is an objective one -- "whether a reasonable officer could conclude that the circumstances . . . established the necessary probable cause." Caldarola, 298 F.3d at 161.
Probable cause exists "when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852. A statement by a victim, particularly one who has signed a complaint charging someone with a crime, is sufficient to establish probable cause "absent circumstances that raise doubts as to the victim's veracity." Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). Thus, "it is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness." Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). Indeed, "[t]he veracity of citizen complainants who are the victims of the very crime they report to the police is assumed." Stokes v. City of New York, 2007 WL 1300983 at *5 (E.D.N.Y. May 3, 2007) (quoting Miloslavsky v. AES Engineering Soc., Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992)).
In this case, Trigg made a written statement, signed under penalty of perjury, accusing Stampf of touching her inappropriately. See Docket Entry 56-3. Trigg's signed statement and subsequent personal report of the allegations to Sokira were sufficient to lead a reasonable police officer to conclude that there was probable cause for Stampf's arrest. See, e.g., Dion v. City of Utica, N.Y., 2005 WL 1174065, at *5 (N.D.N.Y. May 10, 2005) (finding probable cause based on victim's sworn statement and, relying on some of the cases cited above, rejecting the argument that making an arrest based upon an allegation of a single witness and without conducting further investigation is unconstitutional). Here, Sokira, the "arresting officer[, was] advised of a crime by a person who claims to be the victim, and [the victim, Trigg] signed a complaint or information charging [Stampf] with the crime, [and thus there was] probable cause to effect an arrest." Singer, 63 F.3d at 119.
The presumption that a victim's statement is sufficiently reliable to establish probable cause may be rebutted where there are circumstances that raise questions about the victim's veracity. Plaintiff contends that differences in two handwritten statements Trigg provided to the police -- the first statement given on August 1, 2006 at the time Trigg first reported the incident to the police and the second given on August 3, 2006 when Stampf was arrested -- should have caused the police to question Trigg's veracity. Pl. Mem. 30; Pl. R. 56.1 Counterstatement ¶ 174.*fn3 Trigg's second statement, however, was given after plaintiff's arrest. See Docket Entry 56-4 (noting the time of the statement as 12:15); Docket Entry 44-11 at 39 (noting the time of Stampf's arrest as 12:05). Accordingly, any discrepancy between Trigg's two accounts of the relevant events could not have been known at the time of Stampf's arrest, the critical point in time for determining probable cause. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (noting that, in determining whether an officer had probable cause to make an arrest, courts "consider the facts available to the officer at the time of arrest," and that "[o]nce a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest"); Bourguignon v. Guinta, 247 F. Supp. 2d 189, 193 (D. Conn. 2003) (noting that the police may rely on victim or witness statements to determine probable cause, "regardless of the ultimate accurateness or truthfulness of the statements"); Fazzino v. Chiu, 771 F. Supp. 518, 521 (D. Conn. 1991) ("[F]urther investigation might have proven the victim's story to be subject to question . . . . Probable cause is, however, determined at the time of the arrest."). In any event, I discern no material differences between the two statements. Compare Docket Entry 56-3 ("Melissa reached her hand in my car window and grabbed by left breast and shook it.") with Docket Entry 56-4 ("Melissa reaches in the window and grabs my left breast and giggles."). Thus, even if Trigg had provided her second statement before rather than after Stampf's arrest, it would not have raised a question about her veracity.
Plaintiff also argues that Trigg's failure to report the incident to the police until almost one month after it occurred should have led the police to question Trigg's veracity. Pl. Mem. 30. As noted in her August 1st police statement, however, Trigg did report the incident immediately to her employer. Docket Entry 56-3. Moreover, she reported the incident to the police on her first or second day after returning to work after the incident. Id. Finally, Trigg explains in her statement that she consulted with an attorney before making a police report. Id. Thus, Trigg's delay in reporting the incident to the police was sufficiently explained and would not have raised a question about her veracity in the mind of a reasonable police officer. See, e.g., Torino v. Rieppel, 2009 WL 3259429, at *6 (E.D.N.Y. Oct. 8, 2009) ("[T]he mere passage of a significant period of time between a crime and the report to the police does not necessarily raise questions about the veracity of the victim, especially if a credible reason for the delay is given."); Cornett v. Brown, 2006 WL 845568, at *9 (E.D.N.Y. Mar. 30, 2006) (finding probable cause where police officer relied on information from victim-complainant about crime committed several months prior).
Plaintiff's remaining arguments about facts that should have raised doubts as to Trigg's veracity are vague and unpersuasive. Pl. Mem. 30. For all the above reasons, it is clear from the undisputed facts that there was probable cause to support Stampf's arrest. Accordingly, defendants are granted summary judgment on plaintiff's first, second, fourth, and fifth causes of action, to the extent they are based on a claim of false arrest.
C. Plaintiff's Claims Under the Federal Employers Liability Act (FELA)
Plaintiff brings three claims under FELA.*fn4 Her first, asserted against the LIRR, is based on various tortious acts that she alleges occurred in the workplace, including "continuous and ongoing forms of sexual harassment, harassment, verbal abuse, false allegations of sexual harassment and/or sexual assault, a hostile work environment, inappropriate disciplinary charges and wrongful criminal charges." Am. Compl. ¶ 6; see also Tr. at 4-6. Initially, I understood plaintiff's second cause of action to be a FELA claim more specifically based on her arrest and prosecution, and her first cause of action to be focused on other incidents that occurred at her workplace. At oral argument, however, plaintiff's counsel described the second cause of action as identical to the first, but directed at the MTA rather than the LIRR. Tr. at 4-6. Although this seems to be inconsistent with the plain language of plaintiff's complaint, see Am. Compl. p. 5 (stating "As and for a second cause of action against the MTA & LIRR"), I nonetheless accept counsel's construction for purposes of the pending motions and consider the second cause as a FELA claim identical to the first cause of action but asserted against the MTA rather than the LIRR. I originally understood plaintiff's third cause of action to be a § 1983 claim alleging due process and equal protection violations. At oral argument, though, citing ...