United States District Court, N.D. California
March 19, 2004.
JOHN RIVERA, Plaintiff,
NATIONAL RAILROAD PASSENGER CORP., et al. Defendants
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.
IT IS SO ORDERED AND ADJUDGED.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
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
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,
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
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
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
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.
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
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
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
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
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
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
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).
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
For the foregoing reasons and for good cause shown, the Court hereby
GRANTS defendants' motion for summary judgment, [docket #130]
IT IS SO ORDERED.