Higgins v. Metro-North R. Co.

• Decision Date: 28 January 2003
• Docket Number: Docket No. 01-7704.
• Citation: 318 F.3d 422
• Parties: Gayle HIGGINS, Plaintiff-Appellant, v. METRO-NORTH RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 422

318 F.3d 422

Gayle HIGGINS, Plaintiff-Appellant, v. METRO-NORTH RAILROAD COMPANY, Defendant-Appellee.

Docket No. 01-7704.

United States Court of Appeals, Second Circuit.

Argued January 11, 2002.

Decided January 28, 2003.

Charles C. Goetsch, Cahill & Goetsch, P.C., New Haven, CT, for Plaintiff-Appellant.

Carol Sue Barnett, Metro-North Commuter Railroad Law Department, (Richard K. Bernard, General Counsel, on the brief), New York, NY, for Defendant-Appellee.

Before: WALKER, Chief Judge, F.I. PARKER and SOTOMAYOR, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

Plaintiff-appellant Gayle Higgins appeals from the May 11, 2001 judgment of the district court for the Southern District of New York (William C. Conner, District Judge) granting defendant-appellee Metro-North Railroad Company's motion for summary judgment. Higgins's complaint alleges that her latent multiple sclerosis became symptomatic as a result of stress induced by the verbal and physical harassment of John Militano, a co-worker and supervisor. In particular, Higgins appeals the grant of summary judgment for defendant Metro-North on three claims Higgins brought under the Federal Employers' Liability Act: negligent failure to provide a safe workplace; negligent supervision of Militano; and intentional infliction of emotional distress. The district court granted summary judgment on these claims on the basis that Militano's conduct could not be imputed to Metro-North and that Metro-North's supervision of Militano had not been negligent. We affirm.

BACKGROUND

For purposes of this review of summary judgment in favor of defendant, the facts are viewed in the light most favorable to plaintiff. Higgins began working for Metro-North in 1974. In April 1996, she took a position as secretary to Facility Director William Duke at Metro-North's equipment maintenance facility in Harmon, New York. After Duke became ill in April 1997, Higgins worked for both Michael Yaeger and John Militano when they shared the Facility Director position. When Yaeger was appointed Facility Director a few months later, Higgins became his secretary. During this time, Militano was the Superintendent of the Diesel Shop and managed 212 employees who maintain the railroad's rolling stock.

Between 1996 and 1998, Higgins alleges that Militano engaged in a "course of conduct toward Gayle Higgins [that] included both unwanted physical contact that was sexual in nature and outrageous abuse regarding work matters." Militano allegedly yelled and swore at Higgins in front of others about work-related matters on approximately four occasions. Higgins also alleges several incidents in which Militano engaged in sexual banter with her by, for example, telling her that she had a "great ass."

Finally, Higgins alleges five incidents of sexually tinged physical contact by Militano. In the summer of 1997, Militano brushed his hand against Higgins's breast while reaching around her to put out his cigarette in an ashtray. On two occasions in November 1997, Militano poked her in the ribs. Yaeger learned of the second one and told Militano not to behave that way. In April 1998, Militano slapped Higgins's rear end while she was using a fax machine, after which he laughed and ran away. Finally, Higgins alleges that once when she was squatting down at a file cabinet, Militano came up from behind her, put his arms around her waist, startling her such that she fell down. Higgins claims that these incidents made her upset and angry but admits that she never felt physically threatened.

Except for the poking incident that Yaeger observed and inquired about, Higgins did not report these incidents of physical contact to anyone at the time they occurred. It was not until May 1998, while she was on leave recovering from surgery, that Higgins filed a 16-page complaint with Metro-North's Office of Workplace Diversity. The complaint alleged that Higgins had been sexually harassed, subjected to a hostile work environment, and retaliated against by Militano.

Maryann Gormley-O'Connor of Metro-North's Office of Workforce Diversity responded immediately, interviewed numerous people and wrote a thorough report. Gormley-O'Connor concluded that although Militano had engaged in inappropriate behavior, there was no evidence of sexual harassment or retaliation. As a result of the investigation, Militano received a letter informing him that his behavior was unprofessional, warning him that a single repetition could result in his termination and informing him that he had been scheduled for a conflict resolution seminar. By letter Gormley-O'Connor informed Higgins of the action that had been taken against Militano, but also advised Higgins that she should carry out her work in a more professional manner, including utilizing available complaint procedures. Gormley-O'Connor offered a mediation session, but Higgins refused to participate.

Following her surgery, Higgins returned to work in August 1998 but in a different position, working as a secretary for Train Masters Edward Byrne and Peter Hansen in another building on the Harmon site. Higgins alleges that Militano called Byrne's office with abnormal frequency, told her that she "still had a great ass," and "stalked" her on two occasions by driving around the parking lot when she was leaving. Higgins did not bring these incidents to the attention of Yaeger or Gormley-O'Connor, but she may have mentioned aspects of them to Byrne. In late September 1998, Higgins became ill and was diagnosed with multiple sclerosis. In 1999, Higgins stopped working and is currently on permanent disability leave.

DISCUSSION

On appeal, Higgins claims that the district court erred in granting summary judgment to Metro-North by (1) wrongly finding that, in her intentional infliction of emotional distress claim, Higgins did not at least raise an issue concerning whether Militano's conduct was imputable to Metro-North; and (2) improperly applying the standard for imputing an intentional tort to the two negligence claims. We review grants of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. VKK Corp. v. Nat'l Football League, 244 F.3d 114, 118 (2d Cir.2001). Summary judgment is appropriate if there is "no genuine issue [of] material fact and ... the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

All of Higgins's claims are brought under the Federal Employers' Liability Act ("FELA"). 45 U.S.C. § 51. Because intentional torts are recognized under FELA, see, e.g., Davis v. Green, 260 U.S. 349, 351, 43 S.Ct. 123, 67 L.Ed. 299 (1922); Harrison v. Mo. Pac. R.R. Co., 372 U.S. 248, 249, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963), and claims for solely emotional injury are also recognized, Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544-45, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), we find that claims of intentional infliction of emotional distress can be brought under FELA.¹

The district court dismissed Higgins's intentional infliction of emotional distress claim because it found Higgins's allegations insufficient to impute to Metro-North liability for Militano's alleged actions. The district court applied the test employed by the Seventh Circuit in Lancaster v. Norfolk and W. Ry. Co.: a "FELA plaintiff may prevail in an intentional tort case by showing either that the intentional tort was committed in furtherance of the employer's objectives or that the employer was negligent in hiring, supervising, or failing to fire the employee." 773 F.2d 807, 818 (7th Cir.1985). We consider first whether Militano was acting within the scope of his employment and then whether Metro-North's hiring and supervision of Militano was negligent.²

Under FELA, liability for the intentional torts of an employee whose tortious acts are committed within the scope of employment will be imputed to the employer under the doctrine of respondeat superior but "no liability attaches when an employee acts `entirely upon his own impulse, for his own amusement, and for no purpose of or benefit to the defendant employer.'" Gallose v. Long Island R.R. Co., 878 F.2d 80, 83 (2d Cir.1989) (quoting Copeland v. St. Louis-San Francisco Ry. Co., 291 F.2d 119, 120 (10th Cir.1961)).

It is well settled that sexual harassment "consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer." Faragher v. City of Boca Raton, 524 U.S. 775, 794, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Therefore, the alleged sex-related comments and acts cannot be imputed to Metro-North under this doctrine, leaving only Militano's work-related outbursts to be imputed. However, Higgins only alleges four specific incidents of work-related yelling. In the first incident, Militano allegedly yelled, "You'll fucking get [the ICC list] when I give it to you." The other three incidents are of a similar nature. Standing alone, these four incidents do not approach the "extreme and outrageous" conduct required to prove intentional infliction of emotional distress. Restatement (Second) of Torts § 46(1) (1965); see also Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 567 n. 13, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987).

The second means of holding an employer liable for intentional conduct under Lancaster is to show that the employer was negligent. Lancaster, 773 F.2d at 818. In this case, Higgins argues that liability should attach because Metro-North was negligent in supervising Militano. Higgins's claims of negligent supervision and negligent failure to provide a safe workplace require the same showing of negligence. We therefore analyze the second means of holding Metro North liable under Lancaster and the direct negligence claims together.

In order to demonstrate negligent supervision, Higgins must show that Metro-North "knew or should have known prior to...