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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 ...

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