UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-2374

CHRISTOPHER FABY,

Plaintiff - Appellant,

v.

CSX TRANSPORTATION, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

Albert David Copperthite, Magistrate Judge. (1:19-cv-03337-ADC)

Submitted: August 16, 2021 Decided: September 29, 2021

Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and KEENAN, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

P. Matthew Darby, H. David Leibensperger, BERMAN, SOBIN, GROSS, FELDMAN & 

DARBY, L.L.P., Lutherville, Maryland, for Appellant. Amy E. Askew, Ryan A. Mitchell,

Justin A. Redd, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Christopher Faby appeals the magistrate judge’s order dismissing his complaint 

raising claims against CSX Transportation, Inc. (“CSX”) pursuant to the Federal 

Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, and denying him leave to amend

his complaint.

*

 Finding no error, we affirm.

We review de novo a district court’s order granting a motion to dismiss under Fed. 

R. Civ. P. 12(b)(6), “accept[ing] the factual allegations in the complaint as true and 

constru[ing] them in the light most favorable to the nonmoving party.” Rockville Cars, 

LLC v. City of Rockville, 891 F.3d 141, 145 (4th Cir. 2018). To survive a motion to dismiss, 

“a complaint must contain sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotation marks omitted). In other words, “a plaintiff must provide sufficient detail to 

show that he has a more-than-conceivable chance of success on the merits.” Upstate 

Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 645 (4th Cir. 2018) 

(cleaned up), vacated on other grounds, 140 S. Ct. 2736 (2020).

“In order to establish an employer’s liability under FELA, the employee must show 

that he was injured while in the scope of his employment, which employment is in 

furtherance of the railroad’s interstate transportation business, that his employer was 

negligent, and that his employer’s negligence played some part in causing the injury for 

* The parties consented to proceeding before a magistrate judge. 28 U.S.C. § 636(c). 

Faby also raised a claim pursuant to the Federal Railway Safety Act (FRSA), 49 U.S.C. 

§ 20109, but he voluntarily dismissed this claim.
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which compensation is sought under FELA.” Sowards v. Chesapeake & Ohio Ry. Co., 580 

F.2d 713, 714 (4th Cir. 1978) (per curiam). When an employee seeks to hold his employer 

liable for an international tort, such as a coworker assault,

the negligence of the employer can be established under one of two theories. 

First, under what has been termed a ‘direct’ negligence theory, if the 

employer could reasonably foresee that plaintiff would be assaulted, it is 

negligence to fail to prevent the assault whether or not the assault was 

intentional or criminal misconduct. Second, under a theory based on agency 

principles where the intentional wrong was performed by another employee, 

it has been held that negligence can be imputed to the employer if the 

intentional wrong was perpetrated within the fellow employee’s scope of 

employment and in furtherance of the employer’s business. But where one 

employee assaults another employee for the sole purpose of satisfying his 

own temper or spite, the employer cannot be held liable for such a wanton 

act.

Id. at 715 (citations omitted). Similarly, “‘if a supervisor pursues his official duties with 

an excess of zeal, the employer is liable for the torts resulting from that excess; they are in 

furtherance of the employer’s goals.’” Bollino v. Balt. & Ohio R.R. Co., No. 87-3102, 1988 

WL 86619, at *1 (4th Cir. Aug. 17, 1988) (unpublished) (quoting Lancaster v. Norfolk & 

W. Ry. Co., 773 F.2d 807, 819 (7th Cir. 1985)).

We conclude that the magistrate judge correctly dismissed Faby’s original 

complaint. Under the direct negligence theory, Faby did not allege that CSX knew that 

Shoemaker, his supervisor, had assaulted anyone. In Sowards, we rejected the plaintiff’s 

direct negligence claim because the “plaintiff admitted [the defendant] was not known as 

an emotional person.” 580 F.2d at 715. While Faby alleged CSX knew of Shoemaker’s 

anger management problem, this is a conclusory allegation. An anger management 

problem just as plausibly describessomeone who is simply verbally abusive, not physically 
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so, and CSX’s knowledge of verbal abuse would not necessarily make it reasonably 

foreseeable to CSX that Shoemaker would become physically abusive. See Bollino, 1988 

WL 86619, at *1. Moreover, the mere fact that Shoemaker is a boxer does plausibly lead 

to the conclusion that he was more likely to assault someone.

As for Faby’s claim under respondeat superior, we rejected a similar claim in 

Sowards, where the plaintiff, a therapist, was shot by a physician. 580 F.2d at 713-14. We 

concluded that respondeat superior did not apply because:

The clandestine nature of the alleged intentional shooting indicates that it 

could not possibly be considered as one performed within the fellow 

employee’s scope of employment or in furtherance of hospital business. 

Also, plaintiff admits that the assault was personal in nature because he 

testified that he thinks it was precipitated by an altercation involving his use 

of a doctor’s private room and that his practice of using the physicians’ living 

quarters arose out of his personal relationship with the doctors who lived 

there.

Id. at 715.

By contrast, in Bollino, a supervisor assaulted the plaintiff by closing a car door on 

the plaintiff’s arm and shoulder. 1988 WL 86619, at *1. We found that the plaintiff had 

introduced enough evidence to survive summary judgment because the supervisor “was 

authorized by defendant to direct plaintiff about his work, and that for the purpose of 

disciplining plaintiff for failing to acknowledge radio transmissions and compelling 

plaintiff to work, [the supervisor] struck plaintiff with the car door and seriously injured 

him.” Id. at *2.

While Faby’s criticism of Shoemaker was work-related, Shoemaker’s assault is akin 

to the doctor’s shooting of the therapist. Both had workplace grievances with the plaintiffs 
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and reacted by assaulting the plaintiffs. Unlike the supervisor in Bollino, Shoemaker was 

not attempting to discipline Faby; rather, he was responding to a perceived slight by Faby. 

Therefore, the magistrate judge correctly rejected Faby’s claim under respondeat superior.

Faby also claims that the magistrate judge erred in denying him leave to amend his 

complaint. A party may amend a pleading once as a matter of right within 21 days of 

service of the pleading or of a responsive pleading or motion. Fed. R. Civ. P. 15(a)(1). “In 

all other cases, a party may amend its pleading only with the opposing party’s written 

consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “Although leave to amend should 

be freely given when justice so requires, . . . [a] district court may deny a motion to amend 

when the amendment would be prejudicial to the opposing party, the moving party has 

acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton 

Assocs., 602 F.3d 597, 603 (4th Cir. 2010) (cleaned up). An amendment is futile “if the 

proposed amended complaint fails to state a claim.” Katyle v. Penn Nat’l Gaming, Inc., 

637 F.3d 462, 471 (4th Cir. 2011). “[W]e review de novo a district court’s denial of leave 

to amend on the basis of futility.” Davidson v. Randall, 912 F.3d 666, 690 (4th Cir. 2019).

Although Faby’s amendments strengthened his claims, we nevertheless agree with 

the magistrate judge that they were futile. Under the respondeat superior theory, his 

allegation that Shoemaker assaulted him to reassert his authority over him, while designed 

to match the facts in Bollino, is insufficient to show that the assault was committed in the 

course of Shoemaker’s employment. The fact remains that the most plausible 

interpretation of the incident is that the Shoemaker was angry at being criticized and 

assaulted Faby in frustration.
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As for his direct negligence claim, while Faby alleged that CSX employees reported 

Shoemaker’s anger management problem, he did not allege that a CSX employee reported 

an assault. Although Faby included an allegation that Shoemaker had committed prior 

assaults, and that CSX would have learned of the assaults through the exercise of due 

diligence, he did not allege that these assaults occurred at the workplace. This is similar to 

a claim rejected by the District of Columbia Circuit, where the plaintiff did not “show that 

the terminal company knew of [the employee]’s arrest record when it hired him, or that the 

company’s procedures for screening applicants for employment were below the required 

standard of care.” Brooks v. Wash. Terminal Co., 593 F.2d 1285, 1289 (D.C. Cir. 1979).

Therefore, we affirm the magistrate judge’s order. We dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this 

court and argument would not aid the decisional process.

AFFIRMED