Graziosi was foreseeable.

Loera first argued that Amtrak should have been able to foresee that Graziosi
was dangerous because of his background as a convicted felon. She states that
because of this, Amtrak could have reasonably anticipated the alleged incident.
However, Amtrak is correct that Loera has not provided any evidence that it even
uncovered such information on its background check of Graziosi. Furthermore, the
conviction took place 23 years ago and was for burglary and grand larceny. Such
crimes do not establish that Graziosi would have any tendency toward violence
while working at Amtrak because they were not violent crimes, and so are irrelevant

to the current claim.

Loera continued to argue that the conditions in the yard are unsafe, and that
her prior complaints regarding the inappropriate behavior of co-workers should have
led Amtrak to anticipate this incident could occur. Both of these methods to
establish direct negligence fail, since they do not have any bearing on whether
Graziosi himself was a danger to others at Amtrak. Loera makes references to a
variety of dangerous occurrences at the yards, none of which are in any way relevant
to the instant action. Loera cited Vanderveer v. Norfolk and Western Railroad Co.
to establish that FELA claims have been successful where work environments have
been unsafe prior to the incident. 222 N.E.2d 897, 902 (Ill. App. Ct.1966).

However, in Vanderveer, a case not binding on this court, the individuals that

attacked the plaintiff were not employees of the railroad. Jd. at 899. Thus, the

13



Loera further alleged that supervisory personnel only encouraged such behavior and
subjected her to increased scrutiny and stricter working conditions than other
similarly situated employees.

On November 4, 2002, Loera contacted Yardmaster Cornell Wallace
(“Wallace”) to inform him what allegedly occurred with Graziosi the previous day
and that she would not be coming to work. Loera also told Wallace that her left
shoulder was injured. Wallace then instructed her to come to work and give a
statement about the attack. However, Loera refused to do so since she was allegedly
taking medicine that made her drowsy. On November 6, 2002, Loera submitted a
statement about the incident to Steve McClarty (“McClarty”), Graziosi’s supervisor.

Loera filed the instant suit on January 29, 2002. Her second amended
complaint alleges a hostile work environment claim pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000eer seg. (Count I), a Title VII
retaliation claim (Count I), and a claim pursuant to the Federal Employee’s Liability

Act (“FELA”), 45 U.S.C. § 51 (Count II).

LEGAL STANDARD
Summary judgment is appropriate when the record reveals that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the

moving party must identify “those portions of ‘the pleadings, depositions, answers to



Therefore, contrary to Amtrak’s contentions, Loera sufficiently pled an assault claim
because she stated that she was pleading an assault charge in her complaint, and the
court can draw inferences that it is possible to prove that such an assault actually

occurred.

IL_ Title VII Claim

Amtrak’s final argument for partial summary judgment contends that Loera
has not sufficiently established the battery charge relating to the incident with
Graziosi in the stairwell for her Title VII claims, Counts I and II. Amtrak cited
Schobert v. Illinois Dept. of Transp. 304 F.3d 725 (7" Cir. 2002) in which the court
stated that “[e]very tort, whether it be one derived from common law or a statutory
tort like Title VII, requires a showing of harm.” Jd. at 731. Amtrak argues for the
same reasons stated above that Loera has not provided sufficient evidence of
causation and that Loera cannot prove any damages. We disagree for the same

reasons stated above.

Although the above quote from Schobert is accurate, Amtrak mistakes both
the context it was given in and that the Court held that physical harm is required to
prove injury under Title VII. Rather, it stated that “even in cases with no monetary
consequences to the plaintiff, it is still necessary to prove at least a dignitary harm.”
Id. Thus, this precedent does not infer that since Loera has not established the extent
of her injuries she cannot go forth on her claims. However, as discussed above,

17



that it is medically impossible for the shoulder injury to be caused by the pull of
Loera’s right arm. Particularly in light of the lesser burden for a plaintiff bringing a
FELA negligence claim and the fact that an employer can be liable under FELA if
the employer’s “negligence played any part, even the slightest, in producing the
injury or death for which damages are sought,” Cella, 998 F.2d at 429, we conclude

that we cannot find for Amtrak as a matter of law on the issue of causation.

Another reason why Dobozi’s testimony is not determinative on the causation
issue is that it is mainly relevant to damages rather than to causation. Dobozi’s
testimony does not address the operative question this court is faced with on a
summary judgment motion which is whether a battery occurred. Loera correctly
points out that she can recover not only for physical injuries, but also for emotional
distress. Loera also correctly points out that she is not required to show that
Graziosi caused her rotator cuff injury in order to prove the elements for her battery
claim because, although the intentional tort of battery requires physical contacts, it
does not require physical injury. Eljer Mfg., Inc. v. Liberty Mut. Ins. Co., 972 F.2d
805, 811 (7th Cir. 1992). Unauthorized touching that is offensive will suffice for a
battery claim, and the fact that the victim was not “bruised or wounded” is only
relevant to the issues of damages. /d. Amtrak is correct that Dr. Dobozi’s
testimony, especially with the lack of an opposing expert witness, is strong evidence
pertaining to whether Graziosi truly caused the alleged injury. However, his

deposition does not, and cannot, provide evidence that the battery itself, the physical



DISCUSSION
L_FELA Claim (Count III
Amtrak argues that it is entitled to summary judgment on the FELA claim.

FELA provides a broad remedial framework for railroad workers who suffer injuries
while in the scope of their employment. Walker v. N.E. Reg’l Commuter R.R. Corp.,
225 F.3d 895, 897 (7th Cir. 2000). Under FELA, “every common carrier by railroad

. Shall be liable in damages to any person suffering injury while he is employed . .
. for such injury or death resulting in whole or in part from the negligence of any of
the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. To establish
liability in a FELA case, the plaintiff's “burden is significantly lighter than in an
ordinary negligence case.” DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 685 (7th Cir.
1995).

A. Causation

The plaintiff need only demonstrate that the employer’s negligence played
even the “slightest role” in causing the employee’s injury. Darrough v. CSX
Transp., Inc., 321 F.3d 674, 675 (7th Cir. 2003). Thus, the determinative question is
whether the railroad utilized reasonable care in maintaining a reasonably safe work
environment. Id. at 676. Although the plaintiff bringing a FELA claim has a lesser
burden for establishing negligence, a plaintiff must still “prove the traditional

common law elements of negligence, including foreseeability, duty, breach, and


interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.”Celotex Corp.
v. Catrett, 477 U.S, 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case.”/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations in the pleadings, but, “by affidavits or as otherwise provided for in
[Rule 56], must set forth specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a motion for
summary judgment is not simply a “metaphysical doubt as to the material facts.”
Matsushita Elec, Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586 (1986).
Rather, a genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596,
599 (7th Cir. 2000). The court must consider the record as a whole, in a light most
favorable to the non-moving party, and draw all reasonable inferences that favor the
non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co, 212
F.3d 969, 972 (7th Cir. 2000).



Loera has sufficiently pled both an assault and battery. The question now turns to
whether these allegations are sufficient to contribute to Loera’s Title VII claims.

In her complaint, Loera alleges that the assault and battery she suffered from
Graziosi were part of an attempt to “get her.” Amtrak contends that since she has
offered no evidence that Graziosi was part of such a plot, Loera’s claims for hostile
work environment under Title VII fail. We disagree. The additional facts that Loera
has pled, which are not the basis for this summary judgment motion, are necessary to
infer that the incident with Graziosi was not isolated, but rather if proven only
contributed to maintain a hostile work environment for Loera created by various co-
workers. Although by itself her claims of battery and assault by Graziosi might not
be sufficient to establish such hostility, the other multiple incidents surrounding this
claim accumulate to survive summary judgment. Therefore, we deny Amtrak’s

motion for summary judgment on the Title VII claim.

CONCLUSION
Based on the foregoing analysis, we deny Defendant Amtrak’s motion for

summary judgment in its entirety.

Sok De: Ye fag —
Samuel Der-Yeghiay&n
Dated: August 24, 2004 United States District Court Judge

18



automobile.” Schmaltz v. Norfolk & W. Ry. Co.,896 F.Supp. 180, 182 (N.D. Ill.
1995). Amtrak is correct that such evidence is relevant to establishing the causation
of Loera’s injuries resulting in the impaired use of her arm. The viability of this
causal connection could establish evidence of the extent of the injuries Loera
suffered, and the extent of Amtrak’s liability. However, although Dr. Dobozi’s,
expert testimony is valid regarding the issue of whether Graziosi’s actions caused
Loera to tear her rotator cuff, his testimony is not dispositive. Loera correctly points
out that for a FELA claim a trier of fact can infer causation from a temporal
sequence. Cella v. U.S., 998 F.2d 418, 428-29 (7" Cir. 1993)(indicating that
causation can be inferred from “the temporal relationship between the accident and
the onset of the [injury.]”).

Amtrak argues that the instant case involves more complex medical matters
than the example given above of a broken leg and that a trier of fact unskilled in
medicine cannot reasonably make such an inference in the face of contrary medical
evidence. We disagree. The instant case is more analogous to a broken leg. Loera
alleges that her right arm was pulled which turned her suddenly. If her right
shoulder was jerked suddenly then it necessarily follows that her left shoulder turned
as well. Thus, there was an alleged physical exertion on the injured area of Loera’s
person. Amtrak has merely stated in an abstract manner that Dobozi concluded that
the pull of Loera’s right arm could not have caused the left shoulder injury.

However, Amtrak has not provided any testimony by Dobozi that would indicate



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

vinyr Magistrate Juage | __ Samuel Der-Yeghiayan tan Assiged Sodge
CASE NUMBER 02 C 736 DATE 8/24/2004
CASE Loera vs. Nat] RR
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer briefdue__
(4) Q Ruling/Hearingon set fora
(5) ia) Status hearing[held/continued to] [set for/re-set for} on setfor at
(6) Qa Pretrial conference[held/continued to] [set for/re-set for] on setfor at
(7) Oo Trial{set for/re-set for] on__at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to__at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) OC FRCP41(a)(2).
(10) [Other docket entry] For the reasons stated in the attached memorandum opinion, the defendant’s

motion for summary judgment on Count III [99-1] and partial motion for summary judgment on Counts J and II
[99-2] are denied in there entirety. The parties are directed to exchange proposed witness lists by 09/07/04.
Motions in limine are to be filed by 09/21/04. Responses to the motions in limine are to be filed by 10/06/04 and
replies by 10/13/04. The parties are to submit to this Court’s chambers by 10/27/04, the joint pretrial order as
outlined in this Court’s standing order regarding pretrial orders. Copies of the Court standing pretrial order maybe
obtained from this Court’s web page or by this Court’s Courtroom Deputy. Pretrial conference set for 11/09/04
at 10:30 a.m. Jury trial set to begin on 11/15/04 at 9:30 a.m. If the parties believe a settlement conference before
this Court would be useful, the parties are to contact this Court’s Courtroom Deputy. Enter Memorandum
Opinion.

al)

No notices required, advised in open court.

[For further detail see order attached to the original minute order.]

No notices required. number of notices

AUG 2.5 2004

date docketed,

dh.

Notices mailed by judge's staff.

Notified counsel by telephone.

lor pera “ae
fopisia ‘srr
v¥ | Docketing to mail notices. Memorandum Uy A
Opinion distributed in open Court.

Mail AO 450 form.

Co:G uy os

hue

Copy to judge/magistrate judge.

courtroom
deputy's
initials

MW6

Date/time received in
central Clerk's Office

mailing deputy initials



Therefore, although Dr. Dobozi’s valid expert testimony does include
evidence that will be admissible at trial, the issue he will assist in resolving relates to
a question of damages and Amtrak’s extent of liability for those damages. However,
the operative question at hand is whether there is a genuine issue of material fact that
a battery occurred here, Furthermore, although a claim may be based on self-serving
testimony, if a conflict of facts is set up, it is necessary for a jury to sort out the truth.
Wilson v. Chi., Milwaukee, St. Paul, and Pac. R.R. Co.,841 F.2d 1347, 1355 (7th
Cir. 1988). Accordingly, Loera’s testimony asserts facts which create a triable

conflict.

The cases Amtrak cited, none of which are binding on this court, as
supporting its contention that expert evidence is required to prove the injury
occurred all related to chemical or radiation exposure and medical aftermaths.Claar
v. Burlington N. R.R. Co., 29 F.3d 499, 503 (9th Cir. 1994); Simpson v, N.E. Ill.
Reg’l Commuter R.R. Corp., 957 F. Supp. 136, 138 (N.D. Ill. 1997); O’Conner v.
Commonwealth Edison Co., 807 F. Supp. 1376, 1402-1403 (C.D. Ill. 1992). Such
cases are clearly distinguishable from the present issue because exposure to toxic
fumes or chemicals or radiation are not dispositive of whether an injury actually
occurred. Rather, in such cases, the plaintiff must prove that the exposure actually
caused its injury, and that the employer is responsible for any injuries resulting from
such. However, for a battery claim, the operative question is whether the

unwarranted and offensive physical contact occurred. Causation is required to prove

11



contact in the stairwell between Graziosi and Loera, did not occur. Furthermore,
since Loera testified that she and Graziosi were in the stairwell alone when the
incident occurred, there is no other eyewitness testimony available. However, a jury
is able to draw a common sense inference of fault in light of the presented facts.
Harbin, 921 F.2d at 132. Moreover, it is possible that a jury could draw an inference
of battery from the case at hand. Therefore, whether or not Graziosi did actually

grab Loera in the stairwell remains a genuine issue of material fact.

According to Graziosi, he was standing outside of the women’s bathroom to
attempt to see if Loera was in there, and if so, if she needed any medical attention.
(Graziosi Dep. 131, 135). However, he stated in his deposition that he had never
before, in his over two and a half years as a supervisor at Amtrak, asked anyone if
they needed to go to the hospital when they were going home sick. (Graziosi Dep.
133-134, 178). Furthermore, when Marowelli left the bathroom, Graziosi never
asked her if anyone else was in there or if the person inside was alright. (Marowelli
Dep. 13). Marowelli also testified that Loera was crying while she was in the
bathroom. (Marowelli Dep. 24). Thus, if the incident never occurred, and if Graziosi
was standing outside the bathroom to see if Loera needed medical attention, the
question remains of why he would not request information from another woman
leaving the restroom, namely Marowelli. Although at this time we are not making
an opinion on the validity or evidential clarity of these facts, we are concluding that

this sequence of events could potentially motivate a jury to infer a battery occurred.

10



causation." Fulk v. Illinois Cent. R. Co., 22 F.3d 120, 124 (7" Cir. 1994). See also
Walden v, Illinois Cent. Gulf R.R., 975 F.2d 361, 364 (7th Cir. 1992)(stating that
"FELA is not a workmen's compensation act; causation must still be proved").

Amtrak retained Dr. William Dobozi (“Dobozi”) as a medical expert in this
case. Dobozi concluded that Loera’s rotator cuff injury on her left shoulder could
not have been caused by the alleged pull by Grasziosi on her right arm, Dobozi
concluded that the injury resulted from a chronic condition that pre-dated the alleged
arm pulling incident. Loera has not provided any expert opinion to rebut Dobozi’s
medical opinions.

Amtrak acknowledges the lesser burden for a plaintiff to prove negligence for
aFELA claim. However, Amtrak argues that the lesser burden is only applicable to
“proving that an employer’s conduct was negligent” and that the burden is not
applicable to determining whether a plaintiff has proven causation. (Reply 1). Such
an argument is nonsensical. FELA claims generally follow the common law actions
and as such adopts the elements for negligence claims. Fulk, 22 F.3d at 124.
Defendant fails to recall that causation is actually one element for proving a
negligence claim. Amtrak has cited no authority that would limit the lesser burden
to one element of a negligence claim.

Amtrak also argues that expert testimony is required to establish the
connection between an injury and its cause, “unless the connection is a kind that

would be obvious to laymen, such as a broken leg from being struck by an



by her right wrist and shoulder which twisted her. Graziosi allegedly continued to
yell at her saying that she better not tell anyone about this because she was going to
get fired with all her complaining and no one would believe her. Loera purportedly
began crying and ran into the bathroom with Graziosi chasing her.

While in the bathroom, Loera alleged that she could hear Graziosi outside
discussing potential rule violations that he could charge her with. Loera further
contends that she called Doug Silkowski, her union representative, and her fiancé,
Miguel Reyes, from the bathroom. Magdelana Marowelli (“Marowelli”) was also in
the bathroom when Loera entered, and confirmed that Graziosi was standing outside
the door. Loera contends that she was crying the entire time in the bathroom, and
that Graziosi never asked if she needed medical assistance, nor did he ask Marowelli
if Loera was okay. Loera claims that she was trapped in the bathroom by Graziosi.
Reyes subsequently picked Loera up from work. Loera claims that the alleged pull
on her right arm by Graziosi injured Loera’s left shoulder and that she subsequently
required surgery to repair the resulting tear in the rotator cuff on her left shoulder.

Loera also alleges that throughout her employment at the yards she endured
discriminatory gender harassment and sexually harassing conduct from her male co-
workers. Loera alleges that the harassment was so severe that it impaired her ability
to effectively perform her work duties and created a hostile and abusive work
environment. She contends that she repeatedly complained to management

regarding the harassment, which only allegedly increased for reasons of retaliation.



determinative issue was not whether the railroad was negligent regarding a certain
employee, but rather whether the railroad took the precautionary measures necessary
to ensure the safety of its employees while at work. Jd. at 902. This issue is wholly
different from the case at hand, since Amtrak could only be held liable under a direct
negligence theory if Graziosi himself was a foreseeable threat to other employees.
Therefore, even Loera’s past complaints of discriminatory and inappropriate
behavior by other co-workers in the yard do not establish that Graziosi himself was a
threat to anyone, as she said herself that she did not anticipate any such assault or
battery from Graziosi. (Loera Dep. 268). Furthermore, there is no evidence that any
other incidents occurred that would cause Amtrak to foresee Graziosi might have a
proclivity to violence. Although there was an incident with George Sabich
(“Sabich”), another Amtrak employee, who claimed Graziosi harassed him by
yelling at him and pointing his finger in his face, even Sabich did not allege that
Graziosi threatened him with physical harm. Thus, Loera cannot establish Amtrak’s
liability through a direct negligence theory. However, Loera does plead sufficient
facts to survive summary judgment that Amtrak could be held liable on a respondeat

superior theory.

Under a respondeat superior theory, the plaintiff must plead that the tort
occurred in attempted furtherance of the employer’s business. Lancaster, 773 F.2d
at 818. A FELA plaintiff can prove that the tort occurred in the scope of the

employer’s business if it would not have occurred absent the employment

14


required to draw all inferences in the favor of Loera, the non-movant. Therefore,
although Loera might not have presented direct evidence that Graziosi was
attempting to discipline her at the time of the alleged incident in the stairwell, such
an inference could be drawn. Hence, Loera has alleged facts of Amtrak’s liability

under a respondeat superior theory sufficient to survive a summary judgment motion.

C. Assault Claim

Amtrak argues that Loera’s assault claim should be dismissed because she did
not include such a claim in her amended complaint. A plaintiff can bring a cause of
action under FELA alleging the threat of physical contact, thus an assault.Ray v.
Consol. Rail Corp., 938 F.2d 704, 705 (7th Cir. 1991). Furthermore, all that the
Federal Rules of Civil Procedure Rule 9 requires is that a complaint state the
plaintiff's legal claim with some indication of time and place. Thomson v.
Washington, 362 F.3d 969, 970-71 (7thCir. 2004). Therefore, simply stated, the
legal claim must provide adequate notice of the legal basis at issue.Jd. at 971. Loera
states specifically in her amended complaint that she was “assaulted and battered.”
(A Compl. Par. 16). During discovery there has also been evidence produced that
indicates that Loera was frightened of Graziosi and Loera claims that even after the
alleged pull on her arm, she felt trapped in the bathroom by Graziosi and feared
harm from him. Also, we are required to draw all inferences in Loera’s favor for the

purposes of this motion. Anderson, 477 U.S. at 255; Bay, 212 F.3d at 972.

16



an engineer, conductor, and an assistant conductor. One of Loera’s supervisors in
the yards was Trainmaster Tom Graziosi. On November 3, 2002, Loera was
assigned to work with a crew consisting of conductor Bobby Morrow (“Morrow”)
and engineer Bill Dorman. On that day, Morrow contacted the Yardmaster to report
Loera was tardy to work. Loera claims that she was not tardy for work because
employees generally do not have a set start time. When Loera reported for work,
Graziosi called Loera to his office to discuss her tardiness. Loera and Mike
McKenna, a former union representative, went to Graziosi’s office where he
discussed Loera’s tardiness and then sent her back to work.

Loera returned to work and told Morrow that she did not appreciate the fact
that he had “turned her in” to management for being tardy. Shortly after that
discussion, Loera contacted the Yardmaster to tell him that she had an asthma attack
and was going home sick. The Yardmaster in turn informed Graziosi of such
information. Loera then returned to the crew room to prepare to leave. Graziosi,
also in the room posting orders, asked Loera if she was going home sick. Loera,
without responding to Graziosi’s inquiry, left the crew room to go upstairs to the
women’s locker room.

According to Loera, Graziosi subsequently followed her into the stairwell and
yelled at her. Loera allegedly told Graziosi to leave her alone, and that she was
going home. Graziosi then purportedly chased Loera up the stairwell while yelling,

and grabbed at her from a lower stair. Loera contends that he pulled her downwards



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MARIA LOERA, )
Plaintiff,
Vv. } No. 02 C 736

NATIONAL RAILROAD PASSENGER
CORPORATION (AMTRAK), )
Defendant.

DOCKETED

MEMORANDUM OPINION AUG 2 5 2004

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendant National Railroad Passenger
Corporation’s (“Amtrak”) motion for summary judgment on Count III and partial
summary judgment on Counts I and II. For the reasons stated below, we deny the

motion for summary judgment in its entirety.

BACKGROUND
Plaintiff Maria Loera (“Loera”) began working for Amtrak in October of
1988. In 1996 Loera became a train conductor for Amtrak. In November 1998,
Loera was transferred to a yard conductor position in the Chicago train yards

(“yards”). Loera typically worked in the yards with a three man crew consisting of

1

[|



damages, and the extent of liability of the defendant determinative on whether the
extent of injuries suffered were the result of the incident in question. Whether the

actual offensive physical contact occurred is a question for the trier of fact.

B. Amtrak’s Liability

Although we have found that the pleaded facts are sufficient to survive a
summary judgment motion regarding whether the tort occurred, there remains the
question of whether Amtrak would be liable for Graziosi’s alleged actions if proven.
A FELA plaintiff may establish an employer’s liability by one of two methods.
Lancaster, 773 F.2d at 818. First, a plaintiff can allege direct negligence, that the
employer was negligent in hiring, supervising, or failing to fire the employee that
purportedly committed the tort. Jd. Second, a plaintiff can establish respondeat
superior by proving that the intentional tort was committed in furtherance of the

employer’s objectives. Jd.

Under the direct negligence method, a plaintiff must establish that the
employer breached its duty because a reasonable person could foresee that the
alleged circumstances created a potential for harm. Kossman v. N.E. Ill. Reg’!
Commuter R.R. Corp., 211 F.3d 1031, 1036 (7thCir. 2000). Specifically, the
employer is liable under direct negligence only if the employer was negligent in its
inaction regarding the intentional wrongdoer. Lancaster, 773 F.2d at 818. Loera
attempted to prove that Amtrak was negligent because the alleged incident with

12



relationship between the two individuals. Wilson, 841 F.2d at 1356 n.2.
Furthermore, conduct is in furtherance of an employer’s business goals ifa
supervisor performs his duties with an “excess of zeal” and the tort is the result of
that behavior. Lancaster, 773 F.2d at 819 (stating that an employer is liable for
supervisors’ actions in the scope of their employment where supervisors assaulted

employee out of exasperation with employee’s job performance).

Loera alleges that Graziosi assaulted and battered her in the stairwell when
yelling at her for complaining about work conditions to supervisors and yelling to
look up a work rule so that he could “get her.” Amtrak contends that Loera has no
evidence that Graziosi was acting in furtherance of Amtrak’s objectives. We
disagree. Although we are not determining whether this claim will be successful at
trial, we are stating that Loera has alleged sufficient facts that Graziosi’s conduct
was in the scope of his employment. Loera alleged that Graziosi was yelling at her
about her complaining at work. Furthermore, he allegedly was yelling at her for all
her complaining at Amtrak, inferring that he was upset with her conduct at work,

which could establish that he was acting in furtherance of Amtrak’s objectives.

Amtrak also argues that since the record does not provide evidence that
Graziosi assaulted and battered Loera in an attempt to discipline her, this theory of
liability should not be allowed. However, as stated above, the jury is allowed to
engage in common sense inference regarding causation and fault in FELA cases.

Harbin, 921 F.2d at 132. In addition, for a summary judgment motion we are

15