United States District Court, S.D. New York
MEMORANDUM & ORDER
MICHAEL H. DOLINGER, Magistrate Judge.
Plaintiff Shannan Ramsay has sued the National Railroad Passenger Corporation ("Amtrak") under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for physical and emotional injuries allegedly arising out of an incident that occurred on August 6, 2009 in New York Penn Station during the course of her duties as an employee of Amtrak, a common carrier by rail covered under FELA. At the conclusion of discovery, defendant moved for summary judgment. For the reasons below, we deny defendant's motion.
I. THE EVIDENTIARY RECORD
On August 6, 2009, Ms. Ramsay, an Amtrak employee for approximately nine years at the time of the incident,  was assigned the evening shift, from 9:00 P.M. to 5:30 A.M., as overnight attendant to the passenger waiting area in New York City Penn Station. (Defendant's Rule 56.1 Statement ("Def. Facts") ¶ 2; Def. Ex. J, Ramsay Dep. 29:16). Plaintiff usually worked by herself in this position, greeting customers and monitoring the seating area to ensure that entry was limited to ticketed passengers. (Def. Ex. J, Ramsay Dep. 27:17-28:12 & 30:8-23). It is unclear from the record when plaintiff began working as the overnight waiting area attendant, but it appears to have been for at least several months prior to the incident of August 6, 2009.
The Penn Station waiting area to which Ms. Ramsay was assigned is located by the Track 9 & 10 East escalator (Pl. Ex. 4 ¶ 2) and features a desk "like a silver booth" to the left as one enters the area. (Def. Ex. J, Ramsay Dep. 32:10-22). The seating area has a second section with two more entrances, but at the time of the incident plaintiff was the only attendant assigned to the area. (Id. at 33:2-8).
For some uncertain amount of time prior to August 2009, Mr. Charles Jackson, the union official whose responsibilities included the Amtrak areas of Penn Station, had raised concerns on an "almost daily" basis with Amtrak police officers, plaintiff's supervisors, and a more senior Amtrak official that intoxicated individuals without proper tickets "repeatedly harassed, threatened and intimidated passengers and Amtrak employees" in the seating area. (Affidavit of Charles Jackson, Pl. Ex. 4 ¶¶ 6-9). The overnight hours saw the most problematic behavior. (Id. ¶¶ 4-5). In particular, between 10:30 P.M. and 11:00 P.M., when police personnel were unavailable due to shift changes, roll calls running over, and staffing shortages, the police booth near plaintiff's seating area would not be staffed. (Id. at ¶ 8). Plaintiff also testified at her deposition that she had informed her supervisor, Mike Gallagher, about a series of dangerous incidents that had happened in the seating area that she monitored. (Def. Ex. J, Ramsay Dep. 62:6-14).
At 10:35 P.M. on August 6, 2009, three young people who appeared to plaintiff to be intoxicated attempted to enter the seating area, but refused to show plaintiff their tickets when she asked them to do so. (Def. Facts ¶ 4). Plaintiff testified that one man in the group responded to her instruction to show his ticket with curses and name-calling, to which she replied "why are you talking to me like this, do you speak to your mother like this?" (Def. Ex. J, Ramsay Dep. 58:9-22). One of these individuals shoved - or, in alterative versions, threw or rammed - the desk telephone at plaintiff, hitting her on the left side of her stomach. (Def. Facts ¶ 4; Pl. Counter Statement ¶ 4). A witness interviewed by Amtrak police shortly after the incident reporting having heard yelling between plaintiff and the male assailant. (Def. Ex. F at 2). Both the witness and plaintiff reported that the attack with the telephone occurred after the verbal exchange between plaintiff and the assailant. (Def. Ex. F at 2; Def. Ex. J, Ramsay Dep. 58:20-22).
An emergency medical team was summoned to examine Ms. Ramsay, who complained of pain in her belly, but she indicated to them that she felt "fine" and finished her shift that night. (Def. Facts ¶ 5; Pl. Counter Statement ¶ 5; Def. Ex. F at 2). Nonetheless, plaintiff testified that she had experienced severe pain in her stomach at the site where she was rammed with the telephone, and that this pain increased in intensity over the next week, causing her to see a doctor. (Def. Ex. J, Ramsay Dep. 64:6-65:24, 76:20-25). She also testified that she has had longterm feelings of anxiety since the attack, including a sense of insecurity in large crowds. (Id. at 76:20-77:24). She reported that she has been taking medication to control her symptoms of depression, anxiety, and sleeplessness since the incident. (Id. at 78:1-17).
Nearly a month after the incident, on September 9, 2009, plaintiff sought treatment from her primary care physician, Dr. Michael A. Renzi. She related the incident to Dr. Renzi and reported that she had vomited shortly thereafter, but that her symptoms had resolved in two days. (Def. Ex. H at 1). The doctor diagnosed diverticulosis of the colon and recommended a follow-up CT scan of her abdomen. (Id.). Neither party provided any additional evidence reflecting medical treatment sought by plaintiff in the months immediately subsequent to the August 6, 2009 incident.
Regarding plaintiff's allegations of emotional injuries, she had a history of "generalized anxiety disorder/depression" dating to April of 2007, when she took a two-month medical leave from her employment at Amtrak. (Def. Ex. K). In support of plaintiff's claim in this respect, licensed social worker Shelley Lukoff provided a letter dated February 22, 2013 and an affidavit signed October 29, 2014 addressing her treatment of plaintiff from March 25, 2012, "sporadically, " through May 6, 2014. (Def. Ex. E; Pl. Ex 5). Ms. Lukoff described the incident, as recounted to her by plaintiff, mentioned that plaintiff had undergone some psychotherapy by another therapist starting in May 2010, and opined that plaintiff has suffered from symptoms of Post Traumatic Stress Disorder ("PTSD") as well as anxiety and depression arising from the August 2009 assault. (Def. Ex. E at 1-2; Pl. Ex. 5 ¶¶ 6-7, 11).
The record also reflects that plaintiff had some prior medical history. Notably, in February of 2009 plaintiff donated a kidney. She returned to the operating surgeon, Dr. Lloyd Ratner, some months later, apparently in June 2009,  for a follow-up appointment at which she reported improvement from the original incisional pain in her left abdomen, but some persistent tenderness. (Pl. Ex. 8). Plaintiff also reported feeling poorly to her primary-care physician in June 2009, following the kidney surgery. (Def. Facts ¶ 19). In July of 2010 plaintiff saw Dr. Ratner again for "chronic complaints of abdominal pain." (Pl. Ex. 9). The doctor noted tenderness of the left abdomen but did not detect a hernia and observed that a recent CT scan was negative. (Id.). He ultimately determined that "she has some form of chronic pain of undetermined etiology with a significant psychologic overlay." (Id.). The doctor offered no opinion in his report regarding whether plaintiff's complaints in July 2010 relate to the August 2009 incident.
II. SUMMARY JUDGMENT STANDARDS
Summary judgment will be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "An issue of fact is material' for these purposes if it might affect the outcome of the suit under the governing law [while] [a]n issue of fact is genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Shade v. Hous. Auth. of the City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). It is axiomatic that the responsibility of the court in deciding a summary-judgment motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); see, e.g., Anderson, 477 U.S. at 255; Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir. 2000).
The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-moving party has the burden of proof on a specific issue, the movant may satisfy its initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party's claim. See, e.g., id. at 322-23, 325; PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
The court must view all evidence in the light most favorable to the non-moving party, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). "[A]ll doubts as to the existence of a genuine issue for trial should be resolved against the moving party, " Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex, 477 U.S. at 330 n. 2), but "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[;] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 447 U.S. at 248.
If the movant fails to meet its initial burden, the motion will fail even if the opponent does not submit any evidentiary materials to establish a genuine factual issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Giannullo, 322 F.3d at 140-41. If, on the other hand, the moving party carries its initial burden, the opposing party must then shoulder the burden of demonstrating a genuine issue of material fact on any such challenged element of her claim or defense. See, e.g., Beard v. Banks, 548 U.S. 521, 529 (2006); Celotex, 477 U.S. at 323-24; Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). She must also "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 (1986); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005). Rather, she must present specific evidence in support ...