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.
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ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT
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,
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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
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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.
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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 ...