                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 15-2870
                                      ____________

                              JAMES BENTLEJEWSKI,

                                                      Appellant

                                             v.

          WERNER ENTERPRISES INC; DRIVERS MANAGEMENT, LLC,
              a wholly owned subsidiary of Werner Enterprises, Inc.
                                ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 2-13-cv-01385)
                     District Judge: Honorable David S. Cercone
                                    ____________

                             Argued May 19, 2016
            Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges.

                                   (Filed: June 28, 2016)

John D. Newborg (Argued)
225 Ross Street, 4th Floor
Pittsburgh, PA 15219
              Attorney Appellant

Timothy R. Smith (Argued)
Christopher T. Sasada
Pion, Nerone, Girman, Winslow & Smith, P.C.
1500 One Gateway Center
420 Fort Duquesne Boulevard
Pittsburgh, PA 15222
              Attorneys for Appellees
                                        ____________

                                          OPINION*
                                        ____________

HARDIMAN, Circuit Judge.

       James Bentlejewski appeals the District Court’s summary judgment disposing of

his claims against Werner Enterprises, Inc. for defamation, trade libel, and intentional

interference with contractual relationships. We will affirm.

                                             I

       Bentlejewski worked as a truck driver for Werner from May 2011 until he quit one

year later. After leaving Werner, Bentlejewski started training as a conditional driver

associate at Schneider National, Inc. Pursuant to Federal Motor Carrier Safety

Administration (FMCSA) regulations, Schneider requested Bentlejewski’s accident and

driving history report from Werner. In response, Werner provided Schneider with an

employment verification that identified four minor accidents involving Bentlejewski

during his employment with Werner, and classified each accident as “prevent[able].”

App. 241. By email dated May 25, 2012, Schneider told Bentlejewski that he would not

be considered for a driving position.



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                             2
       Nearly a year later, in March 2013, Bentlejewski began probationary employment

with Vitran Express, Inc. Vitran requested Bentlejewski’s accident and driving history

report from Werner pursuant to FMCSA regulations. In June 2013, Werner provided

Vitran with an employment verification that again identified the same four

“prevent[able]” minor accidents. Two days later, Vitran notified Bentlejewski that his

probationary employment would not be continued.

       Bentlejewski filed a complaint in September 2013, alleging that the employment

verifications that Werner provided Schneider and Vitran contained false and misleading

information. After discovery, the District Court granted Werner’s motion for summary

judgment, finding that Werner published information about Bentlejewski’s driving record

subject to a conditional privilege and Bentlejewski failed to defeat that privilege. The

Court also found that Bentlejewski failed to show that Werner acted improperly in

providing information to Bentlejewski’s prospective employers. This timely appeal

followed.

                                              II

       The District Court had diversity jurisdiction under 28 U.S.C. § 1332, and we have

appellate jurisdiction under 28 U.S.C. § 1291. Our review is plenary. EEOC v. Allstate

Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015). We will affirm if the moving party establishes

that there is no genuine dispute of material fact and that the moving party is entitled to




                                              3
judgment as a matter of law. Fed. R. Civ. P. 56(a). Neither party challenges the District

Court’s decision to apply Pennsylvania law.

                                              A

       There is no dispute that Werner’s submissions of the employment verifications to

Bentlejewski’s prospective employers were conditionally privileged under both

Pennsylvania and federal law. See Grogan v. Duane, Morris & Heckscher, 1991 WL

98888, at *7 (E.D. Pa. June 4, 1991) (“Under Pennsylvania law, a conditional privilege

applies when a prior employer provides an evaluation of a former employee to a

prospective employer.” (citing Zuschek v. Whitmoyer Labs., Inc., 430 F. Supp. 1163, 1165

(E.D. Pa. 1977))); 49 U.S.C. § 508(a) (protecting those who provide information about a

driver’s safety performance history from defamation, invasion of privacy, and

interference with contract actions); 49 C.F.R. § 391.23(l) (same). Thus, to maintain a

claim for defamation, Bentlejewski had to prove abuse of the privilege.

       In evaluating whether Werner abused its privilege, the District Court applied an

“actual malice” standard under Pennsylvania law. In other words, Bentlejewski needed to

show that Werner intentionally included false information on his employment

verifications or did so with reckless disregard for the truth to defeat the conditional

privilege. On appeal, both parties agree that Pennsylvania law requires only a showing of

negligence. See Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 923 A.2d 389, 400

(Pa. 2007). This error by the District Court is unavailing to Bentlejewski, however,

                                              4
because the Pennsylvania negligence standard is preempted by federal transportation law.

See U.S. Const. art. VI, § 1, cl. 2 (Supremacy Clause); Oneok, Inc. v. Learjet, Inc., 135 S.

Ct. 1591, 1594–95 (2015) (explaining conflict preemption); 49 U.S.C. § 508(c) (expressly

preempting state law).

       Federal law specifically protects employers against defamation and interference

with contract actions when they provide information about a driver’s safety performance

history. 49 U.S.C. § 508(a); see 49 C.F.R. § 391.23(l)(1)(ii). These protections do not

apply, however, “to persons who knowingly furnish false information.” 49 U.S.C.

§ 508(b)(3) (emphasis added); see 49 C.F.R. § 391.23(l)(2) (same). The District Court

focused on whether Werner knowingly furnished false information, and thus its use of the

words “actual malice” was harmless.

       Turning to the question of whether Werner abused its privilege, Bentlejewski

argues that the employment verifications contained false information regarding three of

the four accidents. Bentlejewski’s evidence does not support that conclusion, even under

the deferential summary judgment standard. He signed accident review reports admitting

the facts regarding two of the three accidents at issue and has not offered any evidence to

counter those initial findings, which were later confirmed by Werner’s Safety Director.

During his deposition, Bentlejewski admitted that he had no evidence other than his own

recollections. And although Bentlejewski initially contested the third accident, he

produced no evidence except for an inconclusive video. This was insufficient to show that

                                             5
Werner knowingly submitted false information regarding these accidents. In sum,

Bentlejewski did not show that Werner provided false information, knowingly or

otherwise, regarding his driving record.

                                             B

       Bentlejewski next argues that the District Court erred when it granted Werner

summary judgment on his claim of intentional interference with contractual relationships.

This claim fails for largely the same reason his defamation claim failed, namely for want

of evidence to support the notion that Werner knowingly provided any false information

or otherwise acted improperly in providing the employment verifications to Schneider and

Vitran. See 49 U.S.C. §§ 508(a)–(b); 49 C.F.R. §§ 391.23(l)(1)–(2); Walnut St. Assocs.,

Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98 (Pa. Super. Ct. 2009) (requiring “proof

that the defendant’s actions were improper under the circumstances presented” to

overcome privilege for sharing information).

                                                 III

       For the foregoing reasons, we will affirm the District Court’s order.




                                             6
