New Jersey rail defense says alleged upskirt photos do not qualify as FELA violations

PHILADELPHIA - A claim by a New Jersey Transit Rail Operations employee that

alleged upskirt photos taken of her by her manager do not meet the standards for a violation under the Federal Employer's Liability Act, according to a letter sent by  NJTRO's attorneys to the federal judge presiding over the case.

According to the letter submitted Jan. 23 to Judge Norma Shapiro, of the Eastern District of Pennsylvania, the claim by Wanda Tate-Linton, of Philadelphia, should have been filed as a violation of Title VII of the Civil Rights Act. FELA was created to compensate rail workers for injuries sustained while performing their potentially dangerous and hazardous work, not workplace sexual harassment, it claims.

"The FELA should cover injuries sustained not while a plaintiff is employed by a railroad but because she is employed by a railroad," the letter says.

The attorneys, Robert Stroh and Stephen Scheuerle, say that Tate-Linton's claim improperly relies on a previous harassment case that was covered by FELA, Dennis v. Consolidated Rail Corp. 

The difference in that case, the letter explains, is that the victim was physically touched by a supervisor. Tate-Linton makes no claim of physical contact by her manager and that he surreptitiously took photos of her. That distinction should qualify the claim as a Title VII discrimination action, the defendant says.

Tate-Linton seeks damages under FELA in excess of $175,000 from her supervisor and NJTRO, claiming that the company implicitly approved his behavior by ignoring her reports of alleged misconduct.

According to the original complaint, the supervisor, James Hollinger, took the pictures in 2012 without Tate-Linton’s permission. She claims that not only did her reports of Hollinger’s behavior go unnoticed, but she was also subjected to retaliatory actions by Hollinger when he found out she spoke to their supervisors.

The exact nature of the retaliation is not stated in the lawsuit, but Tate-Linton says she had to take numerous days off to deal with the stress of a hostile workplace. She says Hollinger’s alleged misconduct may have caused harm both emotionally and physically.

Tate-Linton blames NJTRO for failing to provide her a safe place to work and failing to keep the workplace free from sexual intimidation, plus the intentional infliction of emotional distress by allowing Hollinger’s conduct to persist.

The plaintiff is represented by Philadelphia attorney James Duckworth.