APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, and Kalodner and Aldisert, Circuit Judges.
This appeal from an order granting the dismissal of a complaint filed under the Federal Tort Claims Act, 28 U.S.C. § 1346(b),*fn1 requires us to decide whether Pennsylvania courts would be hospitable to a tort claim, sounding in negligence, for damages resulting from an employer's failure to use due care in maintaining the record of an employee's performance and work history, and whether such a claim would be barred by the "libel-slander" exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(h).*fn2 Reasoning that the interest sought to be protected by the plaintiff -- freedom from injury to one's image or reputation -- was identical to that protected by the defamatory torts, the district court concluded that the plaintiff's claim was barred by Section 2680(h) since it was "purely and simply one of libel and slander." The plaintiff, a former agent of the Bureau of Narcotics and Dangerous Drugs (BNDD), has appealed. We reverse.
In considering defendants' motion to dismiss, the district court was required to take as true all the allegations of the complaint. Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); Gibson v. United States, 457 F.2d 1391, 1393 (3d Cir. 1972). Plaintiff's complaint avers that he was employed for approximately eight years, ending in December, 1969, as an agent and employee of the defendants, first as a special agent for the Federal Bureau of Drug Abuse Control and ultimately as a special agent for the Federal Bureau of Narcotics and Dangerous Drugs; that during his tenure as a federal employee, he received several grade promotions, commendations and awards for the performance of his duties in a manner which was substantially satisfactory or better; that in December, 1969, he resigned from his Federal employment, while stationed in Pittsburgh, Pennsylvania, rather than accept a transfer to Minneapolis, Minnesota; that his resignation was caused by reasons of personal illness, illness in his family, and other personal hardships which rendered impossible plaintiff's relocation to Minneapolis, Minnesota; that subsequent to terminating his employment with the Federal Bureau of Narcotics and Dangerous Drugs, he made application for new employment with numerous public and private law enforcement agencies and with educational institutions, seeking employment both in law enforcement and in law enforcement education; that he made application with Federal law enforcement agencies in Pittsburgh, Pennsylvania, and in New York City, New York, with Pennsylvania state law enforcement agencies, and with community law enforcement agencies and Western Pennsylvania universities.
In his amended complaint he specifically averred:
9(a). In each instance involving a particular prospective employer, his application for employment was refused by that prospective employer because of adverse statements and comments made to said employer by the defendants herein, and their agents and employees, to the effect that plaintiff is not a fit or competent law enforcement officer, or that plaintiff's performance with the Federal government was substandard, or that plaintiff was the subject of disciplinary action before his termination with the government agency, or that plaintiff was, in effect, discharged by the Federal agency for misconduct.
9(b). Having undertaken and accepted the status of plaintiff's employer, the defendants herein assumed the duty and obligation to plaintiff to maintain accurate records of plaintiff's performance and employment history and to maintain such information concerning plaintiff available to all government employees and other persons having a reasonable and justifiable interest therein. Defendants breached that duty and obligation to plaintiff by their negligent, wrongful, tortious conduct in failing to maintain complete, comprehensive, adequate, and accurate records of plaintiff's professional performance and employment history, of plaintiff's exceptional performance of his duties and receipt of commendations and awards in particular circumstances, and of the true circumstances of plaintiff's termination of employment with the federal agencies involved. Defendants further breached their duty and obligation to plaintiff by their failure to maintain and make available to reasonably and justifiably interested persons, including federal agents and employees, of complete and accurate information regarding plaintiff's performance and employment history.*fn3
We take as our threshold inquiry whether plaintiff's averments set forth a claim upon which relief can be granted. "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). And to do substantial justice, reasonable factual inferences will be drawn to aid the pleader. F.R.C.P. 8(f); 5 Wright, FEDERAL PRACTICE AND PROCEDURE, § 1363 at 657.
Section 1346(b) of the Federal Tort Claims Act commands that we look to "the law of the place where the [negligent or wrongful] act or omission occurred." Since the gravamen of plaintiff's complaint is the negligent maintenance of employment records, and since plaintiff averred that he was last stationed in Pittsburgh, Pennsylvania, it is reasonable to infer that his records were maintained in that state. Thus, we must decide if the state of Pennsylvania would recognize a tort of negligently maintaining employment records as distinguished from the tort of defamation.
Plaintiff argues that the law imposes a duty on an employer to use due care in maintaining an employee's work history once it has undertaken the task of such record-keeping and that injury to the ex-employee's reputation is foreseeable when an employer disseminates such information to prospective employers. For its part, the government argues: "In the instant case, there is present no tort principle which makes an employer's failure to compile and maintain complete employment records actionable."
Because there are no precise Pennsylvania precedents, we turn again, as we did in Boase v. Lee Rubber & Tire Corporation, 437 F.2d 527, 531 (3d Cir. 1970), "to the teaching of Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967): 'federal authorities must apply what they find to be the state law. . . . In this respect, it may be said to be, in effect, sitting as a state court.'" "It is incumbent on us to make our own determination of what the Pennsylvania Supreme Court would probably rule in a similar case." Gerr v. Emrick, 283 F.2d 293, 294 (3d Cir. 1960), cert. denied, 365 U.S. 817, 81 S. Ct. 698, 5 L. Ed. 2d 695 (1961). In doing so, we perceive our analysis to require two determinations: whether the Pennsylvania law of libel and slander would pre-empt such a claim in negligence; if not, whether that state would recognize plaintiff's averments ...