The opinion of the court was delivered by: ROVNER
ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE
This action arises out of alleged harassment of plaintiff James Ray by an agent of defendant Consolidated Rail Corp. ("Conrail"). Conrail has filed a motion to dismiss which presents an issue concerning the scope of the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 ("FELA"), on which plaintiff purports to base his claim. For the reasons described below, the Court finds that the FELA does not encompass plaintiff's claim and grants Conrail's motion to dismiss.
The factual allegations of plaintiff's complaint, which the Court accepts as true for purposes of Conrail's motion, see Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 (7th Cir. 1987), are brief enough to warrant quotation in their entirety:
. . . Defendant CONRAIL, through its officers, agents or employees, conducted the railroad business negligently and unlawfully and failed to provide plaintiff with a reasonably safe place to work, including, but not limited to, having fellow employees harass, threaten, and intimidate plaintiff and in particular district claims agent, Robert L. Huggins, threatened, harassed, and intimidated plaintiff maliciously and oppressively, negligently and intentionally, in order to cause personal injury to plaintiff and to cause mental and emotional injury to plaintiff. All aforesaid acts or omissions were condoned or approved by the defendant, CONRAIL, and in whole or in part of said negligence and intentional torts, plaintiff was caused to suffer a mental and physical breakdown and other injuries.
. . . As a result of the negligent and intentional acts or omissions of the defendant and its employees and/or agents, in whole or in part caused plaintiff to suffer severe personal injuries, severe mental and emotional injuries, causing plaintiff to incur medical and allied expenses and will in the future cause plaintiff to incur medical and allied expenses; has caused and will in the future cause the loss of earning capacity; has caused and will in the future cause pain and suffering on behalf of the plaintiff.
Significant for purposes of this opinion is that although plaintiff alleges both mental and physical injuries, he makes no allegation that the conduct which harmed him was physical in nature.
Conrail argues that plaintiff's claim is outside the scope of the FELA because it does not allege that he suffered harm as a result of physical conduct. Conrail relies primarily on Lancaster v. Norfolk and Western Railway Co., 773 F.2d 807 (7th Cir. 1985), cert. denied, 480 U.S. 945, 107 S. Ct. 1602, 94 L. Ed. 2d 788 (1987). In Lancaster, the court ruled that a tort which arose from both physical and non-physical conduct was within the scope of the FELA and that the resulting FELA action was not barred by the Railway Labor Act, 45 U.S.C. §§ 151 et seq. ("RLA"). In doing so, the court stated that "the FELA does not create a cause of action for tortious harms brought about by acts that lack any physical contact or threat of physical contact." 773 F.2d at 813. Similarly, the court stated that "the FELA does not reach torts which work their harm through nonphysical means," and that "a claim under the FELA . . . means a claim for violation of one of the traditional 'physical' torts, such as assault, battery, and negligent infliction of personal injury." 773 F.2d at 815.
Subsequent to Lancaster, the Supreme Court ruled in Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987), that an action otherwise arising under the FELA is not barred solely because it is also subject to arbitration under the RLA. The Supreme Court specifically left open the "question whether 'emotional injury' is cognizable under the FELA." 480 U.S. at 567-71, 107 S. Ct. at 1417.
The Seventh Circuit reaffirmed Lancaster in Hammond v. Terminal Railroad Ass'n of St. Louis, 848 F.2d 95 (7th Cir. 1988), cert. denied, 489 U.S. 1032, 109 S. Ct. 1170, 103 L. Ed. 2d 229 (1989). In that case, plaintiff had ...