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September 29, 1994


Appeal from the Superior Court of the District of Columbia; (Hon. Robert Shuker, Trial Judge)

Before Ferren, Schwelb, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Appellant, Michael McMillan ("McMillan"), brought suit against his employer, the National Railroad Passenger Corporation ("Amtrak"), appellee, under the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1988). Under FELA, a common carrier by railroad engaged in interstate commerce is

liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

Id. at 51.

The complaint alleged that McMillan sustained medical expenses and severe emotional distress because of harassment by fellow employees which his supervisors failed to stop. As a result of this harassment, McMillan alleged that Amtrak breached its duty to provide him with a safe place to work, and he claimed damages for negligent infliction of emotional distress. Moreover, McMillan also sought recovery under a direct negligence theory by alleging that the railroad was negligent in failing to prevent a reasonably foreseeable physical injury he sustained as a result of a co-employee's intentional or criminal misconduct.

At the close of the plaintiff's case, Amtrak moved for a directed verdict, arguing that McMillan had not presented any evidence that Amtrak's negligence caused him physical injury or placed him in a zone of danger which resulted in his emotional distress. The trial court agreed and granted Amtrak's motion for directed verdict. On appeal, McMillan contends that the trial court failed to apply the appropriate standard for a claim of emotional distress under FELA and failed to take the facts presented at trial in the light most favorable to him under the direct negligence theory, thereby erroneously granting the directed verdict. For the following reasons, we affirm in part and reverse and remand in part.


In April of 1987, McMillan's position as a welder in one of Amtrak's maintenance programs was eliminated. He exercised his right, pursuant to his union contract, to displace a less senior employee, Al Phillips ("Phillips"), and assumed Phillips' job as blacksmith. This action is commonly referred to as "bumping." After Phillips was "humped" down to a regular carman's position, McMillan began experiencing difficulties with his immediate supervisors, Larry Hefner and Vincent Tana, both of whom had supervised Phillips.

McMillan testified at trial that because he had displaced Phillips, who was well-liked in the blacksmith shop, he was harassed by his supervisors and co-workers. McMillan testified that his supervisors assigned him work outside of his duties as blacksmith and that he was prevented from performing his duties because his co-workers, in particular Phillips and Sam Morris, were hanging around the blacksmith area and harassing him. McMillan claimed that he reported this harassment to Hefner and Tana, but that neither supervisor took action to remedy the situation.

McMillan's testimony focused on three particular incidents of harassment which he claimed placed him in a "zone of danger" for purposes of recovery under a theory of negligent infliction of emotional distress. The first incident occurred on August 7, 1987. McMillan testified that on that date, Phillips suddenly punched him in the left shoulder for no apparent reason. McMillan claimed that prior to this particular incident he had seen Phillips "punch quite a few people" in front of Hefner and Tana, but to his knowledge, Phillips had not been reprimanded. *fn1

The second and third incidents occurred on August 11, 1987. On that date, McMillan claimed that while he was welding, a co-worker came up behind him, lit a blow torch and placed it to the seat of his welding pants. Neither McMillan nor his welding pants sustained burns. Later that same day, again, while McMillan was welding, Morris hit a steel table on which McMillan was working with a twenty-four pound hammer, using sufficient force to make the welding table bounce off the floor. Though shaken up, McMillan sustained no physical injury from the incident.

McMillan reported all three incidents on August 11, 1987 to a manager, Mr. Driggers, who issued Phillips a formal, written reprimand and reprimanded McMillan for delaying his reporting of the punching incident. That same day, McMillan was sent to the company physician, who referred him to McMillan's private physician for treatment of his shoulder; McMillan did not seek any care from his orthopedist until several months after the incident. *fn2

McMillan testified at trial that because of the harassment of his co-workers he experienced sleeplessness, an inability to perform sexually, and anxiety. Dr. Roth, a psychiatrist whom McMillan began seeing as a result of his difficulties at work and at home, testified that McMillan was suffering from generalized anxiety disorder engendered in part by job-related stress. Essentially, McMillan claimed that these physical and emotional injuries were a ...

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