Frequently federal employees learn that their supervisors are making false and derogatory comments about them and hope to pursue defamation claims individually against these supervisors. Defamation, which includes slander and libel (i.e., spoken and written false statements about a person which injure his/her reputation), is a common law tort, which means that defamation claims are litigated under the state law, generally in the state where the defamation took place. Unfortunately, the law in most states is such that federal employees are unlikely to have any recourse against managers who engage in defamation.
Firstly, federal employees cannot generally be sued for defamation based on statements they make while they are at work — there is a presumption that they are acting within the scope of their employment. If someone is acting within the scope of his or her federal employment, the federal government is substituted as the party in the defamation suit. In other words, you thought you sued John Manager, but suddenly you are suing the Department of Justice. Because, under various statutes, one cannot sue the federal government for defamation, your defamation case against the Department of Justice will be automatically dismissed.
The presumption that an individual is acting within the scope of his/her employment can only be rebutted if it appears that the manager was not acting with any desire to serve the Agency in making the comments. If a supervisor made defamatory statements to provide information to the Agency to help the Agency in defending against an EEO case, for example, then that supervisors was likely acting within the scope of his/her employment. In such a case, an employee will probably have no recourse whatsoever against the individuals involved.
If supervisors made statements to Agency employees strictly for vindictive purposes, and no Agency purpose would be advanced, even conceivably, by the defamatory statements, then an employee will still carry a difficult burden of proof, having to show (for example, in Maryland):
a) that the defendant communicated to a third party a derogatory statement;
b) that the statement was false;
c) that the defendant was at fault in communicating the statement; and
d) that the plaintiff suffered harm.
The falsehood requirement means that statements must be more than mere opinions, like, “Jane Employee is a jerk,” unless someone premised the opinion on a falsehood, for example, “Jane Employee is a jerk because she steals money from her government employer.” A defamatory statement is one that is provably and absolutely false. Also, courts always balance First Amendment free speech rights against tortious defamation claims.
The level of fault required is especially tricky. For example (in Maryland), if John Manager believed and said that Jane Employee stole money from her federal employer, but John Manager did not adequately check the facts – then Jane Employee must prove that she suffered actual harm from the statement. That is, Jane Employee must show (for example) that her job or her relationships were adversely impacted. On the other hand, if John Manager said Jane Employee stole from her Agency when Mr. Manager actually knew that she did not steal (or if the manager was reckless in his statements), then this is called malice. If a manager engaged in such malicious defamation, and because stealing is criminal activity, Jane Employee need not prove any sort of actual harm – such harm to his reputation is inferred. However, an employee must prove malice by clear and convincing evidence – a very heavy burden.
Finally, there is generally no fee-shifting in defamation cases, which means that even if you win, you will bear the cost of your own attorney fees. For all the above reasons, though it is not technically impossible to prove a defamation claim against your supervisor, it is extremely difficult and costly, and your best recourse will usually be through other processes, like before the EEOC or MSPB.
** This information is provided by the attorneys at
Passman & Kaplan, P.C., a law firm dedicated to the
representation of federal employees worldwide. For
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