Wilson v. Consolidated Rail Corp., 91-CV-947.

• Decision Date: 15 January 1993
• Docket Number: No. 91-CV-947.,91-CV-947.
• Citation: 810 F. Supp. 411
• Parties: Jessy J. WILSON, Sr., Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of New York

810 F. Supp. 411

Jessy J. WILSON, Sr., Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

No. 91-CV-947.

United States District Court, N.D. New York.

January 15, 1993.

McClung Peters & Simon, Albany, NY, for plaintiff; Jeremy R. Feedore, of counsel.

McNamee Lochner Titus & Williams, Albany, NY, for defendant; Paul E. Scanlan, of counsel.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

INTRODUCTION

Plaintiff Jessy J. Wilson, Sr. ("Wilson") commenced this action against his employer, Consolidated Rail Corp. ("Conrail"), pursuant to the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51-60, to recover damages for injuries he sustained while employed by Conrail. Mr. Wilson alleges that he sustained these injuries "as a result , wholly or in part, of the negligent acts and omissions of the defendant, its officers, agents and employees." See Plaintiff's Complaint at ¶ 6. Now that discovery has been completed, Conrail moves to have this court grant summary judgment in its favor on the ground that "the Conrail conduct of which Wilson complains is not actionable under the FELA." See Defendant's Memorandum of Law at 3. The court heard oral argument on this motion on January 5, 1993. The following constitutes its findings of facts and conclusions of law.

BACKGROUND

Mr. Wilson has been employed by Conrail in various capacities since 1974. See Wilson Deposition ("Tr.") at 9. In 1985, Mr. Wilson was promoted to Supervisor of Materials at Conrail's Dewitt Yard in Syracuse, New York. Subsequently, in 1989, he was transferred to Conrail's Selkirk Yard in Selkirk, New York, as Supervisor of Materials. See Tr. at 11-12. In this capacity, his duties included, among other things, the supervision of 12 to 18 employees. See Tr. at 15. According to Mr. Wilson, as

supervisor in charge of the warehouse and inventory at defendant's Selkirk Yard, plaintiff was rendered psychologically unable to work pursuant to a course of harassment on the part of management of the defendant that began in late 1990, culminating in plaintiff twice being hospitalized with suicidal ideations. He has been diagnosed as suffering from an adjustment disorder with depressed mood. The defendant failed to provide plaintiff with proper supervision, and accordingly an unsafe place to work, and failed to take any steps to avoid causing stress and harassment to the plaintiff, despite plaintiff supplications to ease up on him (Plaintiff's Answers to Defendant's Interrogatories numbers 27 and 28).

Plaintiff's Memorandum of Law at 1-2 (emphasis in original).

Although not specifically enumerated in his complaint, Mr. Wilson's memorandum of law sets forth the acts of harassment upon which he bases his cause of action:

(1) Plaintiff's immediate supervisor, Larry Feuerstein, subscribed to the philosophy of deliberately antagonizing his employees (Deposition Transcript of Plaintiff, taken January 8, 1992, at page 27).

(2) Plaintiff had been told that "Feuerstein was also `selling me down the tubes. More-or-less blaming me for the problems at Selkirk.... The moral sic problems, vandalism problems, they did some — they were putting graffiti on Larry's door; certain things like that. That overall problem at Selkirk was — I was told that from other superiors at Conrail that Larry was saying that I was the cause of the problem.'" (Plaintiff's Deposition at p. 39)....

(3) On at least one occasion, plaintiff had to mark off sick as a result of the harassment and pressure being placed upon him by both Larry Feuerstein and his supervisor, Joseph Garczynski; the harsh treatment and harassment continued the day after he returned from being sick and he was criticized for having had to be off sick. (Plaintiff's Deposition at pp. 55 and 56).

(4) Plaintiff was made the "company witness" at almost all accident investigations and was directed to testify falsely if it would ensure that the findings would be against the employee. (Affidavit of Jessy J. Wilson, Sr., dated November 24, 1992, para. 14). The course of harassment directed at him intensified as soon as it became apparent that he (plaintiff) would not do so, and culminated in his being targeted for blame following the so-called "fume incident." Wilson Affidavit, para. 8.

See Plaintiff's Memorandum of Law at 3.

In response to these allegations, Conrail contends that even if these actions can be characterized as "harassment," they do not establish the outrageous or unconscionable employer conduct which is a prerequisite to a cognizable claim under the FELA. See Defendant's Memorandum of Law at 40.

DISCUSSION

A. Introduction

In this case, Mr. Wilson contends that his cause of action is based upon a claim of negligent infliction of emotional distress. See Plaintiff's Memorandum of Law at 12. Conrail, on the other hand, maintains that because plaintiff points to a course of conduct by Conrail as the cause of his injuries, plaintiff's complaint is, in reality, based upon a claim of intentional infliction of emotional distress. See Defendant's Memorandum of Law at 29-30. Having carefully reviewed both plaintiff's complaint and his memorandum of law, the court finds that plaintiff has made it very clear that he is alleging negligent, not intentional, infliction of emotional distress. Accordingly, the court concludes that it has no reason to address the issue of whether a claim of intentional infliction of emotional distress would be cognizable under the FELA.¹

B. Summary Judgment Standard

"Summary judgment is appropriate where `there is no genuine issue as to any material fact' and `the moving party is entitled to a judgment as a matter of law.'" Shamrock Technologies, Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 791 (Fed. Cir.1990) (citing in turn Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986)). The mere existence of some alleged factual dispute, however, will not defeat such a motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 210-211 (1986). Rather, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), there must be no genuine issue of material fact. Id. at 248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211 (emphasis in the original). For purposes of this rule, material facts are defined as those which might affect the outcome of the suit under the governing law. Id.

In deciding whether to grant summary judgment, the court's function is to determine whether there is a genuine issue for trial, not to weigh the evidence and determine the truth of the matter. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511, 91 L.Ed.2d at 212. Accordingly, the court must leave credibility determinations, weighing of evidence and drawing of legitimate inferences from the facts to the jury. Id. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216. The party seeking summary judgment 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," which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2558, 91 L.Ed.2d at 274.

Once the moving party has met this burden, the burden shifts to the non-movant to demonstrate that there is a genuine issue of material fact. Although the court must draw all inferences in favor of the non-movant, the non-movant must 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, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986). "Speculation, conclusory allegations and mere denials are not enough to raise genuine issues of fact." Greenblatt v. Prescription Plan Servs. Corp., 783 F.Supp. 814, 819-20 (S.D.N.Y.1992) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (interpreting the "genuineness" requirement)); see also Shamrock Technologies, 903 F.2d at 792-93. Rather, to meet its burden, the non-movant must present affirmative evidence from which a jury might return a verdict in its favor. Anderson, 477 U.S. at 257, 106 S.Ct. at 2514, 91 L.Ed.2d at 217 (emphasis added); see also Greenblatt, 783 F.Supp. at 819-20. This does not mean, however, that such evidence must ensure that the jury will return a verdict in its favor. See Anderson, 477 U.S. at 257, 106 S.Ct. at 2514, 91 L.Ed.2d at 217 (emphasis added).

Furthermore, as a preliminary matter, the non-movant must "make a showing sufficient to establish the existence of the elements essential to his case, and on which he will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. If the non-movant fails to satisfy this initial burden, there can be no genuine issue of material fact because "a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Id. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. Under these circumstances, the moving party is entitled to a judgment as a matter of law. Id. at 323, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

For purposes of determining whether or not to grant summary judgment, Rule 56 limits the information which the court may consider to the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file. In this regard, the movant's uncontested assertions in its 10(j) statement are deemed admitted for purposes of deciding whether summary judgment should be granted.²See Local Rule 10(j); see also Blackwelder v. Safnauer, 689 F.Supp. 106, 112-13 n. 2 (N.D.N.Y. 1988), appeal dismissed, 866 F.2d 548 (2d Cir.1989). In contrast, as one court in this Circuit has stated

it is now well-settled that legal memoranda and oral argument are not evidence and "cannot by themselves create a factual dispute sufficient

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