Defamation claim is not within ambit of FELA and thus is not preempted by FELA

Law Reporter, Oct 2003

Rivera v. National R.R. Passenger Corp., ___ F.3d ___, No. 01-16232, 2003 WL 21338916 (9th Cir. June 10, 2003), amended, 2003 WL 21940493 (9th Cir. Aug. 14, 2003).

The Ninth Circuit Court of Appeals held that a railroad employee's suit against the railroad alleging liability for defamatory statements made by other employees on a respondeat superior theory is not preempted by the Federal Employers' Liability Act (FELA), 45 U.S.C. [sec][sec] 51 et seq.

Here, Rivera worked as a watchman for the National Railroad Passenger Corporation (Amtrak). Rivera was suspended for excessive absenteeism and falsifying a time card. Rivera allegedly spoke with another Amtrak employee and threatened to harm Amtrak management. The employee reported the conversation to Amtrak police, who discovered contraband, an unlicensed firearm, and ammunition in Rivera's home. Local police arrested and jailed Rivera, but the charges were subsequently dismissed.

Amtrak charged Rivera with violating its policies prohibiting threatening coworkers with bodily harm and falsifying time cards, among other things. Amtrak held a hearing in which the employee and Rivera's supervisor testified against Rivera, who was not present. Amtrak subsequently terminated Rivera's employment.

Rivera sued Amtrak and several of its employees individually. Suit alleged defamation, among other claims. The court granted defendants summary judgment, reasoning that the defamation action against individual Amtrak employees was preempted by FELA. Plaintiff appealed.

Reversing, the Ninth Circuit noted that under California law, Amtrak may be held liable for defamatory statements made by its employees under the doctrine of respondeat superior. Respondeat superior liability is triggered if the defamation occurred within the scope of the employee's employment.

Here, plaintiff alleged that his coworkers made defamatory statements in asserting that he had falsified his time card and had threatened Amtrak management. The individual defendants made these statements while on the job, and the statements concerned matters of interest to Amtrak and its employees. The statements are therefore appropriately characterized as being made within the scope of the individual defendants' employment, the court said.

California's respondeat superior doctrine imposes a broad rule of liability on employers, the court noted. The district court therefore erred by dismissing the defamation claim against Amtrak.

Applying the reasoning of Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), the court found that a claim for defamation is unavailable under FELA. In Gottshall, the Court emphasized that the intent of FELA is to compensate for physical injury. A claim for defamation does not result in physical impact and is therefore not the type of claim that FELA was designed to encompass, the court reasoned. The trial court therefore erred when it ruled that Rivera's state law defamation claim was preempted by FELA.

Accordingly, the court reversed.

Plaintiff's Counsel

*Stuart B. Esner, Los Angeles, Cal.

Andrew N. Chang, Los Angeles, Cal.