E-Alert Case Updates

Defamation Action Brought By Former Employee of Veterans Affairs Dismissed Against Individual Defendants and United States Government

Donald Shake v. Teresa Gividen, et al.
Case No.: RDB-12-01496 (United States District Court for the District of Maryland, February 20, 2013)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion from Judge Richard Bennett of the U.S. District Court for the District of Maryland, the Court granted the United States Government’s motion to substitute the Government for the individual Defendants, and thereafter, granted the Government’s motion to dismiss the defamation case.

The Plaintiff, Donald Shake, a former employee of the United States Department of Veterans Affairs (“VA”), filed this case alleging defamation against individuals, Teresa Gividen (“Gividen”) and Brian Sexton (“Sexton”), in connection with their employment with the VA. Specifically he claimed that they intentionally and maliciously slandered him by virtue of statements made in 2008 and 2009 that resulted in him being terminated from the VA and losing his associated retirement benefits.

Plaintiff had been employed as a Medical Support Assistant for the Perry Point, Maryland VA location. He alleged that Mr. Sexton and Ms. Gividen defamed him when they accused him of “knowingly accessing the medical records” of a certain veteran and not completing “hundreds of work orders.” He claimed they started rumors that he was the subject of disciplinary or removal proceedings prior to his termination. He claimed that these statements caused him to lose his job at the VA, and affected his ability to secure subsequent employment as he could not use the VA as a reference.

The United States Government determined that the individual Defendants were acting within the scope of their employment for the VA, and as such, the Government filed a Motion to Substitute the United States as the Sole Defendant and Motion to Dismiss the Plaintiff’s Complaint (or alternatively, for summary judgment).

The Court noted that although Plaintiff filed suit for defamation under Maryland state law, the Federal Tort Claims Act (“FTCA”) provides the exclusive remedy for Plaintiff’s action pursuant to 28 U.S.C. § 2679(b)(1). The Court noted that the relevant portion of the statute provides “upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment . . . any civil action . . . shall be removed . . . [and][s]uch action or proceeding shall be deemed to be an action or proceeding brought against the United States . . . and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(2).

The Attorney General made the necessary certification as to Defendants Gividen and Sexton. While the Plaintiff challenged the certification of the Attorney General, the Court noted that the Plaintiff did not present any specific evidence nor forecast any specific evidence that might contradict the fact that the individual Defendants were acting within the scope of their employment for the VA when the statements were made. As such, the Court granted the United States’ motion to substitute parties, making it the sole Defendant.

Thereafter, the Court noted further that, before proceeding in Federal Court, the plaintiff must first present his claim to the appropriate Federal agency under the Federal Tort Claims Act. Moreover, the Court instructed that Federal Tort Claims Act specifically bars suits asserting slander claims against the federal government, pursuant to 28 U.S.C. § 2680(h); and therefore Plaintiff’s action was dismissed with Prejudice.