The opinion of the court was delivered by: NEAHER
This action for defamation arises out of an incident involving two nurses which occurred while they were on duty at the Veterans Administration Hospital in Northport, Long Island. Plaintiff initiated the action in the District Court of Suffolk County but found herself in this court upon defendant's petition for removal pursuant to 28 U.S.C. § 1442, commonly known as the federal officer's removal statute. Two causes of action are asserted. First, plaintiff claims defendant maliciously uttered the following false and defamatory statement about plaintiff to "various personnel of the hospital": "Malone (plaintiff herein) told me to give a medication that she did not have an order for and insisted upon me giving that order." (Complaint P 20.) Second, she claims defendant published information in an official "Report of Contact" concerning plaintiff which contained the following libelous statement: "She (plaintiff) proceeded to tell me that I was not to question her or the doctor's orders." (Compl. P 23.) Damages are claimed in the amount of $ 6,000 for each of the two claims. The action is before the court on defendant's motion pursuant to Rule 12(c), F.R.Civ.P., for judgment on the pleadings and on plaintiff's cross-motion for an order remanding the case to State court.
The facts are not altogether clear. According to the complaint, plaintiff was on duty at the hospital on the night of October 17, 1977, when she interpreted a medication order which read "MgSO 4 lcc" (magnesium sulfate) as calling for morphine, and asked defendant to give the patient an injection stating "(it) doesn't say how often he gets it. We'll give it once and call the doctor to see how often he wants him to get it." (Compl. P 11.) Plaintiff alleges defendant balked, picked up the ticket, and stated "(t)his isn't morphine." She refused to give the injection, whereupon plaintiff stated she would check the formula with the lab, and the nurse and doctor on duty. After assurances that the ticket indeed did not call for morphine, plaintiff asserts she admitted error and asked defendant to give the proper medication.
In the meantime, defendant was apparently discussing the correctness of her interpretation of the order with another registered nurse which caused plaintiff to admonish her not to discuss their disagreements with others. An argument ensued, leading to intervention by the nurse on duty who ultimately suggested that a "report of contact" be made concerning the incident (Compl. P 19). Plaintiff claims that thereafter defendant "reiterated" the defamatory words to "various personnel of the hospital." (Compl. P 20.)
Defendant's version of the facts differs. Basically she contends that the absence of an indication on the medical ticket as to how often the medication was to have been given caused plaintiff to check the prescription with the head nurse and doctor who immediately corrected her erroneous interpretation of the order. Despite these assurances, defendant contends plaintiff directed her to inject morphine. Only after she refused to administer the morphine did plaintiff again check with the lab, the head nurse and the doctor.
Apart from these differences, the stories are consistent. It is undisputed that the following day, the hospital's head nurse directed defendant to make a written report of contact, which contains the allegedly libelous material set forth above. Plaintiff also was requested to report on the incident. Moreover, the nurse on duty on the night of the incident submitted her own report. A Notice of Intent to Admonish followed, which after an additional rebuttal by plaintiff, resulted in a letter of admonishment being placed in plaintiff's official file where it will remain for six months to two years.
Before reaching the motion for judgment on the pleadings, the court must briefly dispose of plaintiff's cross-motion to remand this case to State court, based as it is on a misconception of the court's power under 28 U.S.C. § 1442. Removal pursuant to this provision by a federal officer sued in State court for "any act under color of such office" is an absolute right and is not dependent upon the discretion of the court. See Willingham v. Morgan, 395 U.S. 402, 406, 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1969). This represents a Congressional judgment that actions against federal officers based on acts performed under color of office should be tried exclusively in a federal forum. Id. at 407, 89 S. Ct. 1813; Gurda Farms, Inc. v. Monroe City Legal Assistance Corp., 358 F. Supp. 841, 843 (S.D.N.Y.1973). Thus, our inquiry is limited to whether plaintiff's action arises out of acts performed by defendant under color of office.
The answer is simple. The phrase must be broadly construed. Areskog v. United States, 396 F. Supp. 834, 838 (D.Conn.1975). It is sufficient therefore that defendant's objectionable contact with plaintiff occurred inside the Veterans Administration Hospital while plaintiff was performing her official duties and that the relationship between the parties derived solely from their official duties. See Willingham v. Morgan, supra at 409, 89 S. Ct. 1813. Since defendant acted under color of federal office, her right of removal is absolute. Hence, plaintiff's motion to remand is denied.
Turning to the question of defendant's motion for judgment on the pleadings which will be treated as a motion for summary judgment since the court has considered matters outside the pleadings, Rules 12(c) and 56, F.R.Civ.P. we note defendant claims entitlement to judgment as a matter of law on two grounds. First, she asserts that the truth of her statements operates as an absolute bar to suit and, second, argues that the statements are absolutely privileged because made in response to the direction of her superiors and required by duty.
With respect to the written report, it is clear that the communication was absolutely privileged and cannot be the basis for a cause of action in libel.
This follows from the rule established in Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959), which provides federal officials with absolute immunity from common law suits for defamation for acts taken within the outer perimeter of their official duties. Id. at 569-75, 79 S. Ct. 1335.
See also Spalding v. Vilas, 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (1896). The recent decision in Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), leaves this holding intact. There the Court drew a narrow exception to a general rule of qualified immunity reaffirming the applicability of absolute immunity in common law tort actions. Id. at 2905 n. 22. See Granger v. Marek, 583 F.2d 781 (6 Cir. 1978).
It is well settled that this absolute privilege is not an emolument of exalted office but is an expression of a policy designed to promote effective government, see Barr v. Matteo, supra 360 U.S. at 572-73, 79 S. Ct. 1335, and extends to lower federal officials, see, E. g., Grossman v. McKay, 384 F. Supp. 99 (D.Md.1974) (employee of Training Education Branch in the Office of Personnel Management of NIH); Sanders Lead Co. v. Levine, 370 F. Supp. 1115 (M.D.Ala.1973) (U. S. Public Health official); Areskog v. United States, supra (Navy officials). It is also clear beyond cavil that statements made by federal officials in the course of disciplinary proceedings, evaluations, complaints and related investigations which the official is under a duty to complete, are within the scope of the official's duties. See, E. g., Preble v. Johnson, 275 F.2d 275 (10 Cir. 1960); Pagano v. Martin, 397 F.2d 620 (4 Cir. 1968); Chafin v. Pratt, 358 F.2d 349 (5 Cir. 1966); West v. Garrett, 392 F.2d 543 (5 Cir. 1968); Shipp v. Waller, 391 F. Supp. 283 (D.D.C.1975).
Here it is undisputed that defendant was directed by her superiors to submit a "Report of Contact." Moreover, the Veterans Administration Employee Letter 00-75-4 which details employee responsibilities and conduct, requires that employees furnish testimony and information in disciplinary and employment cases (see Defendant's Exhibit G). Refusal to so testify may in fact result in disciplinary action. Thus, defendant was clearly under a duty to give the testimony in question and was acting within the outer perimeter of her duties in so doing. Defendant is therefore granted judgment dismissing all claims and causes of action predicated upon statements contained in the "Report of Contact."
The oral statement alleged to be the basis for a cause of action in slander poses a more difficult and, as will be shown, insurmountable obstacle to defendant's motion for summary judgment. Although defendant has come forward with some evidence to support her version of the facts, it cannot be said with assurance that there is but one, undisputed version which would entitle defendant to judgment as a matter of law. The difficulty lies in determining what the facts are in the first instance and in concluding on the basis of such a scant record what the "truth" is in the second. For the following reasons, that part of defendant's motion that is directed at the oral statement detailed In haec verba in paragraph twenty of the complaint is denied.
Paragraph twenty sets forth that "upon information and belief, further conversation ensued between the defendant and various personnel of the hospital wherein the defendant reiterated the following: "Malone (plaintiff) told me to give a medication that she did not have an order for and insisted upon ...