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United States District Court, N.D. California

March 19, 2004.

JOHN RIVERA, Plaintiff,

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Defendants' motion for summary judgment has been granted. Judgment is entered accordingly in favor of defendants and against plaintiff.



  On March 19, 2004, this Court heard argument on the motion by defendants, National Railroad Passenger Corp., et al., for summary judgment. Having carefully considered the arguments of counsel and the papers submitted, the Court hereby GRANTS the motion for summary judgment.


  On August 14, 1995, pursuant to an employment contract, plaintiff John Rivera ("Rivera") began working for defendant National Railroad Passenger Corporation (" Amtrak") as a night watchman. First Amended Complaint ("FAC") at 2. This action arises out of Rivera's termination in May 1998.

  Amtrak employees such as Rivera are covered under a collective bargaining agreement which prescribes procedures by which Amtrak may discipline or discharge an employee. Dep. of John Rivera at 28:11-16 (attached to Decl. of Marion McWilliams, Ex. P); Decl. of Carlos Hernandez at 2. The agreement requires Amtrak to issue written charges of employment policy violations and conduct a formal hearing. Decl. of Carlos Hernandez at 2. The hearing is conducted by a neutral hearing officer, whose findings and recommendations are subject to appeal. Id. at 2. Pursuant to this procedure, in March 1998, Page 3 Amtrak charged Rivera with three violations of employment policy: (1) falsification of a time card, (2) violation of the attendance policy, and (3) threatening Amtrak co-workers with bodily harm. Decl. of Larry Mahon at 2 and Exs. I-K.

  Rivera was notified of the formal hearing concerning these charges but did not attend. Decl. of Larry Mahon at 2-3. On Rivera's behalf, a union representative appeared and interviewed witnesses during the hearing. Id. The hearing officer made findings substantiating the charges, and consequently, Amtrak's General Manager Don Saunders terminated Rivera's employment effective May 7, 1998. Decl. of Pat Gallagher at 2 and Ex. G; Decl. of Don Saunders at 2 and Ex. M. Rivera did not appeal the hearing officer's findings or Saunder's decision. Depo. of John Rivera 147:22-148:13.

  Instead, Rivera filed suit against Amtrak and several co-workers. Rivera alleges that his supervisor on the night watch, Richard Carney (" Carney"), and other unnamed Amtrak workers "were using drugs on the job and induced Rivera with the threat of termination into buying drugs from them and into using drugs with them while on the job." FAC at 2; Decl. of John Rivera at 2. Rivera avers that, at an unspecified time thereafter, he decided to cease his drug use and so informed Carney. FAC at 2. He allegedly also requested that Carney allow him to enroll in Amtrak's drug rehabilitation program and sought to be transferred to another shift to avoid the drug use. Id. Carney allegedly rejected both requests and threatened that Rivera would lose his job if he informed anyone else at Amtrak of the drug use or his desire to enter a drug rehabilitation program. Id; Decl. of John Rivera at 2.

  Also, Rivera claims that defendants Carney, Larry Mahon, and other unnamed Amtrak employees were engaged in the illegal sale of Amtrak machinery parts. FAC at 3. Rivera claims that after he learned of the illegal sales Carney offered him $5,000 not to inform company officials about the theft and also to refrain from exposing the drug use. Id; Decl. of John Rivera at 3. Rivera refused the alleged offer, which allegedly prompted individual Amtrak employees Carney, Mahon, Angel Acevedo, Carlos Hernandez, John Fallowfield, Doug Demming, and Tom Mahr to conspire to have Rivera fired. FAC at 3. The alleged conspiracy involved falsification of Rivera's time cards to create the appearance that he was chronically absent and had claimed pay for days he did not work. FAC at 4; Decl. of John Rivera at 4.

  Rivera also alleges that the individual defendants promulgated the false allegation — started by Page 4 Acevedo — that Rivera had threatened to kill Amtrak employees. FAC at 4-5. As a result of the statement,

  Amtrak notified the police department in the City of Hayward, and Hayward officers, accompanied by Amtrak officers, visited Rivera at his home. FAC at 5-6. The visit resulted in Rivera's arrest for possession of drugs, an unregistered rifle and ammunition. Id. All charges against Rivera were subsequently dismissed "in the interest of justice." FAC at 6.

  This case was filed in Alameda County Superior Court, and removed to this Court by defendants. The initial complaint asserted seven state-law based causes of action. By order dated January 7, 2000, this Court dismissed various claims, some with and some without leave to amend.*fn1 A state-law defamation claim against Amtrak was dismissed without leave to amend because the statements attributed to Amtrak itself were privileged under California law; and a state-law defamation claim against the individuals was dismissed because the Court found that the claim was preempted by the Federal Employers Liability Act ("FELA"). In his First Amended Complaint, Rivera stated four causes of action: (1) wrongful termination; (2) defamation against the individual defendants under FELA; (3) false arrest and imprisonment; and (4) malicious prosecution. FAC at 3. On May 4, 2001, this Court granted defendant's motion for summary judgment as to all four causes of action. Summary judgment on the defamation claim was based on the fact that individual co-employees cannot be held liable under FELA. Rivera v. Nat'l R.R. Passenger Corp., 2001 WL 533706 at *1 (N.D. Cal May 4, 2001). Plaintiff appealed this Court's ruling to the Ninth Circuit, asserting that this Court erred in three respects: in granting summary judgment in favor of Amtrak on the wrongful termination claim; in dismissing the state law defamation claim against the individual defendants and Amtrak; and in denying plaintiff leave to amend his defamation claim against Amtrak in order to assert the claim under FELA. Rivera v. Nat'l R.R. Page 5 Passenger Corp., 331 F.3d 1074, 1076(9th Cir. 2003).*fn2 The Ninth Circuit affirmed this Court' summary judgment ruling with respect to the wrongful termination claim, but reversed and remanded this Court's Rule 12(b)(6) order dismissing plaintiff's state law defamation claims. Id. at 1082.*fn3 The Ninth Circuit held that the defamation claims against the individual defendants were not preempted by FELA and that Rivera should be "permitted to maintain his defamation claim as a state law cause of action against the individual defendants." The court also held that "[u]nder the doctrine of respondeat superior, Amtrak may be held liable for the defamatory statements made by the individual defendants." Id. at 1081-82. In neither this Court's summary judgment order, nor the Ninth Circuit's opinion reversing and remanding, was any ruling made on the question of absolute or qualified privilege under California Civil Code §§ 47(b) or (c).

  After remand, on January 5, 2004, defendant filed a motion for summary judgment on plaintiff's state law defamation claims against Amtrak and the individuals. Def.'s Mot for Summ. J. at 1. Plaintiff opposes the motion, asserting defendant has ignored the mandate of the Ninth Circuit opinion. Pl's Opp'n at 1. Defendant's motion for summary judgment is currently before this Court.


  Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323; 106 S.Ct. 2548, 2553 (1986). The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the Page 6 burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. See id. at 325.

  The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" See Celotex Corp., 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586; 106 S.Ct. 1348, 1356 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252; 106 S.Ct. 2505, 2512 (1986). In a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. See id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id.


 1. Doctrine of the law of the case

  Defendants base their summary judgment argument on three alternative grounds: (i) that plaintiff's state law defamation claims are preempted by the Railway Labor Act ("RLA"); (ii) that statements made by defendants are absolutely privileged under California Civil Code § 47(b); and (iii) that statements made by defendants are subject to a qualified privilege under California Civil Code § 47(c). Defs.' Mot. for Summ. J. at 1. In opposition, plaintiff argues the mandate of the Ninth Circuit iRivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1076 (9th Cir. 2003), prohibits defendants' motion for summary judgment. Pl's Opp'n at 1.

  In defendants' original summary judgment motion, which was heard in April 2001, defendants argued: (1) that plaintiff's FELA defamation claim against the individuals failed as a matter of law because individuals cannot be held liable under FELA; (2) that plaintiff's defamation claim against Amtrak and the individual defendants failed as a matter of law because it was preempted by the RLA; and (3) that plaintiff's defamation claim against Amtrak and the individual defendants failed as a matter of Page 7 taw because the alleged-defamatory statements made by defendants were subject to an absolute or qualified privilege under California law. Decl. of Pl.'s Counsel in Supp. of Opp'n, Ex. 2 at 1-2. In its May, 2001 summary judgment order, this Court held that Rivera could not establish a claim of defamation against the individual defendants under FELA and denied plaintiff's request to file an amended defamation claim against Amtrak. Rivera, 2001 WL 533706 at *6. Having decided the defamation claim on that basis, this Court did not address defendants' RLA preemption or privilege arguments. Id

  Plaintiff now contends that this Court must assume that although the Ninth Circuit did not discuss

  the defenses of RLA preemption or privilege in its decision, it "impliedly" considered, decided and rejected defendants' RLA and privilege arguments because they were included somewhere in the trial-court record before the appellate court. Pl.'s Mot. for Summ. J. at 2. Accordingly, plaintiff asserts defendants are barred from re-arguing any contention on the record before the Ninth Circuit, despite the text of the opinion. Id.

  "The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995) (citations and internal quotations omitted). The doctrine acts as a bar only when the issue "was actually considered and decided by the first court." Id. Although the law of the case doctrine applies to a court's explicit decisions and those made by necessary implication, it "clearly does not extend to issues an appellate court did not address." Id. Lower courts are free to decide "anything not foreclosed by the mandate." United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000).

  In United States v. Kellington, 217 F.3d at 1091-92, after being found guilty of conspiracy to obstruct justice, defendant made motions for a judgment of acquittal and for a new trial. The trial court granted defendant's motion for judgment of acquittal without indicating whether it would grant the motion for a new trial if the motion for acquittal was reversed. Id. On appeal, the Ninth Circuit reversed and remanded the trial court's entry of a judgment of acquittal. Id. Neither party briefed or otherwise raised the trial court's failure to enter a conditional ruling on the motion for a new trial at the appeal. Id. On remand, the trial court granted defendant's motion for a new trial and the prosecution again appealed. Id. In the second appeal, the prosecution argued the trial court ignored the appellate mandate by reinstating the motion for a new trial. Id. The Ninth Circuit disagreed, holding that reversing the trial Page 8 court's decision with respect to the judgment of acquittal in no way spoke to the trial court's ability to grant defendant's motion for a new trial. Id. at 1095; see also Cote, 51 F.3d at 181 (holding that summary denial of a petition does not indicate the court considered every issue presented by the parties).

  The Ninth Circuit opinion in Rivera did not address the issues of RLA preemption or application of California's absolute or qualified privilege. Rivera, 331 F.3d at 1080-81. Rather, the Circuit Court addressed whether Amtrak could be liable for defamatory statements made by its employees under the doctrine of respondeat superior and whether plaintiff's state law claims for defamation were preempted under FELA. Id. Essentially, plaintiff argues that the Ninth Circuit implicitly decided in his favor defendants' assertions regarding RLA preemption and privilege simply because the arguments were made somewhere in the record before the appellate court. This is not what the law of the case requires. An appellate court is not presumed to have decided issues not presented and argued before it, or issues that were not addressed in its opinion. Kellington, 217 F.3d at 1095. The law of the case doctrine does not extend to issues the appellate court did not address. Cote. 51 F.3d at 181. Accordingly, this Court is free to address defendants' arguments concerning RLA preemption and privilege.

 2. RLA preemption

  The RLA establishes a mandatory arbitral mechanism in order to "promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes." Hawaiian Airlines Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 2243-44 (1994). The RLA requires arbitration of two classes of disputes, major disputes and minor disputes. Id. "Major disputes relate to the formation of collective bargaining agreements or efforts to secure them," while "minor disputes involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation." Id. at 252-53, 2244 (internal quotations and citation omitted). Defendants contend plaintiff's defamation claims relate to a minor dispute. Defs.' Mot. for Summ. J. at 7-8. "The RLA's mechanism for resolving minor disputes does not preempt causes of action to enforce rights that are independent of the CBA." Id. at 256, 2246. In Espinal v. Northwest Airlines, 90 F.3d 1452, 1455 (9th Cir. 1996), an airline ramp service worker was terminated for failing a pre-placement physical examination because he was a diabetic. Plaintiff sued, alleging, among other things, disability discrimination under California's Page 9 Fair Employment and Housing Act ("FEHA") Id. Defendant argued" plaintiff's claim was preempted by the RLA. Id. The Ninth Circuit held plaintiff's FEHA claim was not preempted because the facts of the disability discrimination claim could be analyzed entirely apart from the CBA. Id. at 1458.

  Defendants argue plaintiff's defamation claims are preempted by the RLA because they stem from proceedings required under the CBA, specifically the grievance procedure. Defs.' Mot. for Summ. J. at 7. However, plaintiff has a state-law right not to be defamed by his coworkers, despite any obligation under the parties' collective bargaining agreement. See Norris, 512 U.S. at 258, 114 S.Ct. at 2246. Resort to the collective bargaining agreement is not required in order to determine the truth or falsity of defendants' statements; thus plaintiff's defamation claims are entirely independent from the CBA. Accordingly, the RLA does not preempt plaintiff's state law defamation claims.

 3. Application of an absolute or qualified privilege

  a. Absolute privilege under California Civil Code § 47(b)

  California Civil Code § 47(b) provides an absolute privilege for any publication or broadcast that is made in any "(1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable [by mandate]." Cal. Civ. Code § 47(b); see Wallin v. Vienna Sausage Mfg. Co., 156 Cal.App.3d 1051, 1054 (1984). Grievance procedures governed by a CBA are considered "proceedings authorized by law and reviewable by mandate." Wallin, 156 Cal.App.3d at 1053; see also Kemmerer v. County of Fresno, 200 Cal.App.3d 1426, 1439-40 (1988). Communications made during the proceeding and those made in order to prompt an investigation into a possible wrongdoing are subject to the absolute privilege. Hagberg v. California Federal Bank FSB, 32 Cal.4th 39 (2004); Wallin, 156 Cal.App.3d at 1056; see Dove Audio. Inc. v. Rosenfeld. Mever & Susmaa 47 Cal.App.4th 777, 784 (1996), Williams v. Taylor, 129 Cal.App.3d 745, 753-54 (1982).

  Nearly every alleged defamatory statement made by the defendants was made for the purpose of Page 10 initiating an investigation into plaintiff's possible wrongdoings.*fn4 Ded. of Richard Carney at 3; Decl. of John Fallowfield at 2; Decl. of Carlos Hernandez at 2; Decl. of Larry Mahon at 2; Decl. of Don Saunders at 2; Decl of Angel Acevedo at 2. Statements made by the defendants concerning plaintiff's alleged threat, his repeated absences from work, and his alleged falsification of time cards were all made in order to report plaintiff's wrongdoings up the management chain of command as required by Amtrak's policy manual.*fn5 Id.; see also Ex. C attached to Decl. of Richard Carney.

  Plaintiff has not offered any evidence to suggest such statements were made outside the context of initiating or conducting the CBA grievance procedure. All plaintiff offers to counter the application of the absolute privilege is the blanket assertion that the entire investigative process and hearing was a "deliberate sham designed to prevent the plaintiff from appearing and defending himself [at the grievance hearing]." Pl.'s Mem. of P. & A. in Opp'n to Mot. for Summ. J. or Partial Adjudication, at 13, March 28, 2001. However, plaintiff fails to offer any evidence in support of this argument. Because defendants' statements were made in order to initiate an investigation for wrongdoings subject to a CBA grievance procedure or during such a proceeding, they are absolutely privileged under California Civil Code § 47(b).

  b. Qualified privilege under California Civil Code § 47(c)

  California Civil Code § 47(c) provides a "qualified privilege for communications made without malice in the common interest of the speaker and listener." Vackar v. Package Machinery Co., 841 F. Supp. 310, 313 (N.D. Cal. 1993). Once it is established that the statement was made on a privileged occasion, the opposing party has the burden to demonstrate the statement was made with malice in order to escape the qualified privilege. Lundquist v. Reusser, 7 Cal.4th 1193, 1202-03 (1994). California's Page 11 qualified privilege applies statements between employees dial are of common interest Vackar, 841 F. Supp. at 315 (holding interest in keeping workplace free of sexual harassment was sufficient common interest to subject statements between employees to the qualified privilege).

  In his declaration, defendant Richard Carney admitted he discussed plaintiff's alleged threat with another Amtrak employee who was present when plaintiff made his threat. Decl. of Richard Carney at 2. This statement is not subject to California's absolute privilege because it was not made to initiate an investigation for wrongdoings subject to a CBA grievance procedure or during such a proceeding. However, Carney's statement to his co-employee is subject to California's qualified privilege because it concerned matters of interest to the speaker and listener, namely safety in the workplace. Plaintiff offers no evidence of Carney's malice to defeat the qualified privilege. Thus, Carney's statements to his co-employee concerning plaintiff's alleged threat is privileged under § 47(c).*fn6 As a result, all alleged defamatory statements made by defendants are privileged under either § 47(b) or § 47(c). Accordingly, defendants' motion for summary judgment is GRANTED.


  For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants' motion for summary judgment, [docket #130]


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