United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-51050 

____________ 

John S. Malek, 

Plaintiff—Appellant, 

versus

United States of America, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 5:21-CV-73 

______________________________ 

Before Jones, Barksdale, and Elrod, Circuit Judges. 

Per Curiam:*

Plaintiff-Appellant John S. Malek appeals the district court’s 

dismissal of his complaint for lack of jurisdiction under the Federal Tort 

Claims Act. Because the individually named defendants were acting within 

the scope of their employment when they made the allegedly defamatory 

statements, we hold that the United States properly substituted itself as the 

defendant. We AFFIRM. 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 25, 2024 

Lyle W. Cayce 

Clerk 

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I 

This defamation suit arises out of workplace sexual harassment 

allegations made against then-Major John S. Malek of the United States Air 

Force by three United States Air Force employees. 

Malek worked as Chief of Military Justice in a legal office at Joint Base 

San Antonio-Lackland. Air Force employee Lauryn Deering was a civilian 

attorney who worked with Malek. Captain Kara Iskenderian and Captain 

Morgan Hicks were commissioned officers in the Air Force Judge Advocate 

General’s Corps (JAG Corps) who also worked with Malek. 

In the fall of 2019, Iskenderian, Deering, and Hicks began accusing 

Malek of inappropriate behavior, including but not limited to, staring at 

Iskenderian and Deering’s breasts and buttocks, asking inappropriate 

questions about their personal lives, and “tracking down” Iskenderian and 

lingering in her office. Deering and Iskenderian alleged that they were the 

subjects of Malek’s inappropriate behavior, and Hicks stated that she 

witnessed Malek’s behavior towards Iskenderian. 

Malek asserts that the individually named defendants discussed their 

accusations against Malek in conversations with one another and other Air 

Force employees between November 2019 and April 2020. Specifically, 

Malek alleges that Iskenderian and Deering first defamed Malek to each other 

in November 2019 by discussing their concerns about Malek’s behavior with 

one another. Then, on or around December 9, 2019, Malek alleges that 

Iskenderian reported her concerns to Lieutenant Aaron Allard (her 

supervisor), Colonel Lori Gill (a Staff Judge Advocate who also occupied a 

supervisory role), and numerous other employees. According to the 

government, Gill was initially dismissive of Iskenderian’s allegations. 

Iskenderian then confided in others in the office about Malek’s behavior and 

complained that leadership was not doing anything to address her concerns. 

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Nevertheless, Gill did follow up on Iskenderian’s concerns by bringing in 

Master Sergeant Ashley Salmones to witness at least one of the conversations 

Gill had with Iskenderian. 

In addition, the same week that Iskenderian reported her concerns to 

Gill, Air Force inspectors were conducting a Staff Assisted Visit of the office, 

during which someone else told them about Iskenderian’s sexual harassment 

complaint. The record suggests that the inspectors then informed Gill of the 

allegations, communicating additional information that Iskenderian had not 

initially included in her conversations with Gill. 

At that time, Gill had Malek removed from his position as Chief of 

Military Justice and reassigned to another position. Gill also initiated a 

Commander Directed Investigation into Malek’s conduct. On December 30, 

2019, the Air Force assigned Major Sarah Nazarechuk to complete the 

investigation. During the investigation, Iskenderian, Hicks, and Deering all 

allegedly repeated their allegations to Nazarechuk. Nazarechuk ultimately 

found Malek responsible for sexual harassment and “Conduct Unbecoming 

an Officer and Gentleman.” 

II 

Malek sued Deering, Iskenderian, and Hicks for defamation, 

defamation per se, negligent misrepresentation, and intentional inflection of 

emotional distress in state court in Comal County, Texas. 

The United States certified that the individually named defendants 

were acting within the scope of their federal employment with the Air Force 

at the time of the events alleged in Malek’s complaint. Accordingly, the 

United States removed the case to federal court and substituted itself for the 

named defendants, as authorized by the Westfall Act. See 28 U.S.C. §§ 1442, 

2679(d)(2). 

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After removal and substitution, the United States moved to dismiss 

the case for lack of jurisdiction. The government alleged that Malek had 

failed to first submit an administrative claim to the Air Force, as required 

under the Federal Tort Claims Act. In addition, the government argued that 

the doctrine of derivative jurisdiction deprived the federal court of 

jurisdiction because the state court lacked jurisdiction at the time of filing. 

Malek did not dispute that the district court lacked jurisdiction over 

the United States. Instead, Malek challenged the United States’ certification 

that Deering, Iskenderian, and Hicks acted within the scope of their 

employment when they made the allegedly defamatory statements. Malek 

requested discovery on the scope-of-employment issue. 

The district court denied the government’s motion to dismiss without 

prejudice and granted Malek’s request for discovery. The district court then 

opened limited discovery into the scope of employment issue. At the close 

of discovery, the United States moved again to dismiss the suit because the 

district court lacked jurisdiction over Malek’s claims. The United States also 

asserted that claims based on events before December 31, 2019, were barred 

under Texas’ one-year statute of limitations. After requesting and receiving 

further briefing on the scope of employment issue, the district court 

dismissed Malek’s complaint for lack of jurisdiction. 

III 

The issue before us is whether the United States correctly substituted 

itself as the defendant when it certified that the individually named 

defendants were acting within the scope of their employment when they 

made the allegedly defamatory statements. We review whether a federal 

employee was acting within the scope of their employment under the Federal 

Tort Claims Act de novo. Williams v. United States, 71 F.3d 502, 505 (5th Cir. 

1995). A plaintiff who challenges the government’s certification that a 

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federal employee was acting within the scope of their employment must 

prove by a preponderance of the evidence that the employee’s conduct was 

not within the scope of their employment. Id. at 506. We agree with the 

district court that Malek has not met this burden. 

“[W]hether a particular federal employee was or was not acting within 

the scope of his employment is controlled by the law of the state in which the 

negligent or wrongful conduct occurred.” Garcia v. United States, 62 F.3d 

126, 127 (5th Cir. 1995). Thus, we analyze whether Malek proved by a 

preponderance of the evidence that Deering, Iskenderian, and Hicks were not 

acting within the scope of their employment under Texas state law. 

In Texas, an employee’s act falls within the scope of employment if 

the act is done “(1) within the employee’s general authority, (2) in 

furtherance of the employer’s business, and (3) for the accomplishment of 

the objective for which the employee was employed.” Rodriguez v. Sarabyn, 

129 F.3d 760, 767 (5th Cir. 1997) (citing Robertson Tank Lines, Inc. v. Van 

Cleave, 468 S.W.2d 354, 357 (Tex. 1971)). 

More specifically, for an employer to be liable for defamation by its 

employee in Texas, a defamatory statement must be: “(1) referable to a duty 

owed by the employee to the employer and (2) made while the employee is 

in the process of discharging that duty.” Id. at 769 (citing Texam Oil Corp. v. 

Poynor, 436 S.W.2d 129, 130 (Tex. 1968)). When “an employee deviates 

from the performance of [their] duties for [their] own purposes, the employer 

is not responsible for what occurs during that deviation.” Minyard Food 

Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). To establish a 

deviation, an employee has to do more than “mentally turn[] aside” from his 

employer’s business and must be outside of his actual duties of employment. 

Rodriguez, 129 F.3d at 769. Indeed, an employee’s conduct falls within the 

scope of employment “even if the employee performs negligently or is 

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motivated by ulterior motives or personal animus so long as the conduct itself 

was pursuant to her job responsibilities.” Laverie v. Wetherbe, 517 S.W.3d 

748, 753 (Tex. 2017). 

The district court held that the alleged statements of the individually 

named defendants fall under the scope of their employment as Air Force 

employees because the Air Force Manual and Air Force Policy Directive 

“conclusively establish[] the individually-named [sic] defendants were 

acting within the scope of their employment when they participated in the 

Air Force investigation.” 

Although Malek argues that the employees’ statements concerning 

his workplace conduct do not fall within the scope of employment because 

they were made “out of a personal vendetta,” Anderson v. United States, 364 

F. App’x. 920, 923 (5th Cir. 2010) (holding that an employee’s statements 

concerning the workplace conduct of another employee are not within the 

scope of employment if they were made out of a personal vendetta), Malek 

has failed to present evidence of such a personal vendetta in this case. We 

AFFIRM. 

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