No Defamation Liability for Statements made to FBI During Background Check

In most (but not all) cases, absolute immunity applies to statements made by government contractors to government investigators in the course of an official investigation. The United States District Court for the Eastern District of Virginia recently addressed this issue in Kolakowski v. Lynch and found that statements made to the FBI in the course of an employment background check could not form the basis of a defamation action.

Daniel Kolakowski filed an employment discrimination charge with the EEOC against his former employer, MITRE Corporation, alleging he had been harassed because of his Polish ancestry. Kolakowski and MITRE eventually signed a mediation agreement resolving the dispute. Under the agreement, MITRE agreed to not discriminate or retaliate against Kolakowski for filing the charge.

When Kolakowski later applied for a job with the Federal Bureau of Investigation, he signed a form authorizing the FBI to investigate his background and allowing former employers to release information about him. The FBI interviewed three of Kolakowski’s former supervisors at MITRE. The three employees allegedly told the FBI that FBI seal.jpgKolakowski took excessive days off work, exaggerated how much worked, lied about his wife having cancer, and was generally untruthful. When the FBI did not hire Kolakowski, he sued MITRE and the three supervisors for breach of contract and defamation. The defendants removed the case to federal court and moved to dismiss for failure to state a claim.

Kolakowski argued that the supervisors’ statements to the FBI amounted to defamation and retaliation and therefore breach of his agreement with MITRE. Defendants argued that the statements were protected by absolute immunity necessitating dismissal of Kolakowski’s complaint.

In Mangold v. Analytic Serv. Inc., the Fourth Circuit considered whether absolute immunity shielded a government contractor from liability arising from statements made in response to government investigators during an official investigation, and it outlined a balancing test in which courts consider the extent to which the public interest would be served by granting or refusing immunity. The Fourth Circuit held that a government contractor receives absolute immunity only insofar as necessary to shield statements and information, whether truthful or not, given by a government contractor and its employees in response to queries by government investigators engaged in an official investigation.

Here, MITRE is a government contractor, and Kolakowski admitted that the defendants were responding to an inquiry by government investigators. The only question was whether the FBI background check was part of an “official investigation” or, as Kolakowski argued, a routine employment inquiry. The court found it clear that the FBI inquiry was an official investigation since it was conducted by an official government agency. Additionally, the FBI’s website described the form that Kolakowski signed as a standard background investigation form used by the entire U.S. intelligence community. Because the defendants were government contractors responding to an official inquiry, Mangold applied and provided them absolute immunity against defamation and retaliation charges. The court also dismissed the breach of contract claim because it was based entirely on the court finding the defendants defamed and retaliated against Kolakowski.

The court granted the defendants’ motion to dismiss and dismissed Kolakowski’s complaint with prejudice.

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