Federal Employees May Be Immune From Defamation Claims

I previously reported on the Stafford County case of Suzanne Brown v. Katherine Schoeneman in which Brown, an FBI agent, brought a defamation action against Schoeneman for allegedly false reports Schoeneman made to superiors accusing Brown of making sexual advances toward her. The Government removed the case to federal court, substituted itself as the defendant under the Westfall Act, and moved to dismiss under the Federal Tort Claims Act. The court granted the motion as the FTCA’s waiver of sovereign immunity expressly excludes claims for libel and slander. See 28 U.S.C. § 2680(h).

The Westfall Act (aka the Federal Employees Liability Reform and Tort Compensation Act of 1988) amended the Federal Tort Claims Act to make it the exclusive remedy for torts committed by federal employees acting within the scope of their employment. It precludes federal employees from being sued for claims arising under state tort law (such as slander or intentional infliction of emotional distress) if they were acting within the scope of their employment. See 28 U.S.C. § 2679(b)(1). If the FTCA precludes recovery against the United States, then the plaintiff may be left without a remedy, as this case demonstrates.

Upon consideration of the Government’s motion to dismiss, the only issue before the court was whether the allegedly defamatory acts fell within the scope of Ms. Schoeneman’s employment. The plaintiff did not dispute that if the conduct was committed within the scope of employment, substitution of the United States as the defendant and removal to federal court was appropriate.

The Government’s certification that a party acted within the scope of employment is conclusive unless challenged. Where challenged, the certification is prima facie evidence that the alleged acts were within the scope of employment, and the plaintiff must prove by a preponderance of the evidence that the employee was not acting brickwall.jpgwithin the scope of employment. A plaintiff is required to provide specific evidence rather than conclusory allegations that contradicts the certification. The question is always one of law for the court to decide, and discovery is not appropriate on the issue unless there is a material dispute of fact.

The court examined whether Brown had demonstrated by a preponderance of the evidence that Schoeneman was acting outside the scope of her employment when she reported Brown’s alleged sexual harassment. The court noted that sexual harassment is illegal. The FBI has a policy of no tolerance where sexual harassment is concerned, and employees are encouraged to report such matters. Preventing and correcting workplace sexual harassment is therefore within the ordinary course of the FBI’s business. Additionally, Schoeneman was on duty when she made the reports, and she made them at FBI facilities. Schoeneman, an FBI employee, followed FBI procedure and policy and reported an incident of harassment in the workplace. She clearly was acting within the scope of her employment, the court found. Brown had thus failed to meet her burden.

Brown argued that Schoeneman’s conduct fell outside the scope of her employment because she committed an intentional tort when she reported the alleged harassment and because her reports were motivated entirely by her own interests and reckless disregard for the truth. The court rejected these arguments as the willfulness or wrongful motive of an employee does not excuse an employer’s liability. Intentional torts are within the scope of employment as long as the act was done within the ordinary course of business. Any contrary rule would undermine the Government’s sovereign immunity. Additionally, the Supreme Court of Virginia has held that an employee’s motive in performing the allegedly tortious act does not determine whether the action falls within the scope of employment. The issue is whether the service in which the tortious act was done was within the ordinary course of business. For these reasons, the court dismissed the case.

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