Netto v. Amtrak

Citation863 F.2d 1210
Decision Date25 January 1989
Docket NumberNo. 87-3898,87-3898
PartiesDavid NETTO, Plaintiff-Appellant, v. AMTRAK (National Railroad Passenger Corporation), Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert L. Hackett, Oestreicher, Whalen & Hackett, New Orleans, La., for plaintiff-appellant.

Ellis B. Murov, Deutsch, Kerrigan & Stiles, New Orleans, La., Robert A. McCullough, Asst. Gen. Counsel, Nat.R.R. Passenger Corp., Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, KING, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Plaintiff David Netto appeals a summary judgment rendered against him and seeks to compel further discovery. Netto brought his initial action alleging violations by his employer of the Federal Employers' Liability Act. Finding the district court's judgment to be correct, we affirm.


Defendant National Railroad Passenger Corp. ("Amtrak") employed Netto as a railroad policeman for approximately five and a half years. Before he was employed by Amtrak, Netto had been an officer with the New Orleans Police Department. During his employment at Amtrak, Netto investigated an incident that involved the alleged rape of a woman by an unknown assailant in the Amtrak coach yard. Amtrak received Netto's report about the incident around January 30, 1981. Several years later, in the spring of 1986, Amtrak began both an internal and a criminal investigation into alleged improprieties in the operations of the New Orleans Amtrak Police Department. In the course of this investigation, Netto was questioned about the reports he had filed concerning the 1981 rape incident, and he was also asked to submit to a polygraph exam. On the day of the polygraph, Netto checked into the psychiatric unit of a hospital where he was treated for a "mental and nervous condition." Netto remained in the hospital for one month and was discharged as fit to return to work. Amtrak fired Netto from his job in August 1986. Netto appealed in an arbitration proceeding, but his discharge from Amtrak was upheld.

Netto then filed this suit in September of 1986, claiming that he was the victim of "ruthless harassment" by Amtrak employees during an "unfounded witchhunt." Netto alleged that he suffered a nervous breakdown as a result of this harassment, and he sought $830,000 pursuant to the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 et seq. ("FELA"). In December 1987, the district court granted Amtrak's motion for summary judgment. The court granted summary judgment because it found that: (1) Netto's injuries were purely emotional; (2) recovery under FELA for purely emotional injuries requires a showing of unconscionable abuse or outrageous conduct; and (3) the undisputed material facts show neither unconscionable abuse nor outrageous conduct. In this appeal, Netto challenges the district court's grant of summary judgment, and also argues that he should be allowed to continue the discovery process.

I. Standard of review

In reviewing the district court's grant of summary judgment, the standard of review at the appellate level remains the same as at the trial court level. Ayo v. Johns-Manville Sales Corp., 771 F.2d 902, 904 (5th Cir.1985). The pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, must demonstrate there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265, 273-75 (1986), cert. denied, --- U.S. ----, 108 S.Ct. 1028, 98 L.Ed.2d 992 (1988); Fed.R.Civ.P. 56(c). Under this standard, fact questions are considered with deference to the nonmovant. Reid v. State Farm Mutual Automobile Insurance Co., 784 F.2d 577, 578 (5th Cir.1986). The appellate court decides questions of law, however, just as it decides questions of law outside the summary judgment context: de novo. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988); Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Insurance Co., 832 F.2d 1358, 1364 (5th Cir.1987).

II. FELA claim for emotional injuries

Netto argues that the district court erred in holding he had no cause of action for emotional and mental injuries. Netto contends that these injuries were caused by Amtrak's "deliberate harassment and/or negligent treatment" of him during the rape investigation. This harassment, in turn, allegedly led to Netto's month-long hospitalization.

In support of these claims, Netto relies on the Supreme Court's ruling in Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). In Buell, the Supreme Court, identifying as the purpose of the FELA the creation of a federal remedy for railroad workers injured through the negligence of their employer or their fellow employees, 1 107 S.Ct. at 1413, refused to carve out a narrow exception for purely emotional injuries. The Court, however, left open the question whether purely emotional injuries are cognizable under the FELA. Id. at 1416-17. Arguably, the Court limited such claims to situations in which the plaintiff has suffered severe emotional injury as a result of unconscionable abuse. Id. at 1416 n. 13, 1417-18. In commenting upon the argument that allowing FELA actions to complement arbitration under the Railway Labor Act would open the floodgates of litigation, the Court stated: "This parade of horribles mistakenly assumes that a significant percentage of employees bringing grievances suffer the type of severe emotional injury that has generally been required to establish liability for purely emotional injury ... and that a significant percentage of employees are subject to the type of unconscionable abuse which is a prerequisite to recovery." Id. at 1416 n. 13.

Later in its opinion, however, the Court reflects upon the variation among state tort laws 2 recognizing claims for intentional or negligent infliction of emotional distress and states that

whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity ... In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive "yes" or "no" answer.

Id. at 1417-18.

The Court, in sum, appears to invite the lower courts to parse the FELA in light of the specific facts of later cases. As the First Circuit has commented about Buell: "We discern from the Buell opinion an attempt to leave the door to recovery for wholly emotional injury somewhat ajar but not by any means wide open." Moody v. Maine Central Railroad Co., 823 F.2d 693, 694 (1st Cir.1987).

Three circuits have addressed the cognizability of FELA emotional injury claims in the wake of Buell. In Moody, supra, a plaintiff railroad employee claimed that his employer negligently injured him through long-continued harassment by denying him admission to its engineer training program, assigning him to unattractive locations, denying his qualification for certain runs, and suggesting in a letter by his superior that in the future no employees like the plaintiff be selected for training and advancement. Id. at 693. The First Circuit affirmed a summary judgment for the railroad, but in so doing it resisted the opportunity to "explor[e] the frontier possibly opened by Buell." Id. at 694. Instead, the court affirmed because plaintiff failed to make a sufficient showing that severe emotional injury was caused by the railroad. See Celotex Corp. v. Catrett, 477 U.S. at 322-24, 106 S.Ct. at 2552-54, 91 L.Ed.2d at 273-75 (summary judgment mandated, after adequate time for discovery, against party failing to make showing sufficient to establish essential element of case on which party bears burden of proof).

The Sixth Circuit, by contrast, has explored the frontier opened by Buell and found no home there for a claim of intentional infliction of emotional distress under FELA. In Adkins v. Seaboard System Railroad, 821 F.2d 340 (6th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 452, 98 L.Ed.2d 392 (1987), a former railroad employee sued his former employer for emotional distress allegedly caused by a threatened discharge for insubordination. Id. at 340-41. The Sixth Circuit read Buell to refer only to negligent conduct as giving rise to an FELA claim. Id. at 341 (citing Buell, 107 S.Ct. at 1413, 1415). According to that court, although Buell notes that the FELA has been held to apply to some intentional torts, 107 S.Ct. at 1414 n. 8, the FELA has not been applied to intentional torts that lack any physical dimension, such as assault. Id. at 341 (citing Antalek v. Norfolk & Western Railway Co., 742 F.2d 1454 (6th Cir.1984); Lancaster v. Norfolk & Western Railway Co., 773 F.2d 807, 813 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987)). Because the plaintiff's claim was "clearly one for intentional infliction of emotional distress," it failed for FELA purposes.

The Seventh Circuit has held that no FELA claim was stated by a plaintiff's allegations that the railroad:

unfairly criticized the plaintiff's work, prosecuting unwarranted disciplinary charges against him, setting unrealistic work quotas and 'wearing him out physically and mentally thereby,' harassing him by 'keeping an extraordinarily close watch on [his] work and following him from work assignment to work assignment,' conducting disciplinary proceedings against him unfairly ... and, ... deliberately inflicting emotional distress on him.

Hammond v. Terminal R.R. Ass'n of St. Louis, 848 F.2d 95 (7th Cir.1988). In reaching this conclusion, the court followed its own precedent. Lancaster v. Norfolk & Western Ry., 773 F.2d 807 (7th Cir.1985), ...

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