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RUBENSTEIN v. TRANSPORT WORKERS' UNION OF GREATER NEW YORK

September 6, 2005.

FREDRIC G. RUBENSTEIN, Plaintiff,
v.
TRANSPORT WORKERS' UNION OF GREATER NEW YORK, LOCAL 100, and ROGER TOUSSAINT, Defendants.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Plaintiff Fredric G. Rubenstein ("Rubenstein") brings this action against defendants Transport Workers' Union of Greater New York, Local 100 ("Local 100") and Roger Toussaint ("Toussaint"), alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964. Toussaint filed a counter-claim against Rubenstein, alleging defamation, in violation of New York common law. Before the Court is Rubenstein's application, made pursuant to Fed.R.Civ.P. 56, for summary judgment with respect to the defamation counter-claim. The defendants oppose the application. It is addressed below.

  II. BACKGROUND

  Rubenstein was employed by Local 100 as a staff representative and organizer, beginning in August 1996. Local 100 is a labor union that represents certain employees of the New York City Transit Authority ("NYCTA"), and the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"). Toussaint was elected president of Local 100 in December 2000, defeating the incumbent president. Soon after taking office on January 1, 2001, Toussaint dismissed a number of Local 100 staff members who, he contends, were loyal to the previous president and hired new staff members to replace them.

  One of the newly hired staff members was Robert Ortiz ("Ortiz"), who had previously been dismissed by NYCTA following an arbitration panel's determination that Ortiz had engaged in misconduct while in NYCTA's employ. In a letter to Toussaint, dated January 29, 2001 ("letter"), Rubenstein objected to the hiring of Ortiz. The letter stated, in pertinent part:
Dear President Toussaint:
You hired Robert "Tito" Ortiz onto the Local 100 staff. As you know, New York City Transit dismissed Mr. Ortiz for making anti-Semitic slurs against another employee. Ortiz's discharge was sustained at arbitration (copy supplied).
Specifically, Ortiz called a Jewish employee a "fucking Jew." This and other anti-Semitic remarks spoken by Ortiz terrorized the employee who was a victim of religious persecution before escaping the Communist Ukraine. Ortiz also threatened to "bury" this individual. During the arbitration, Ortiz confessed. In upholding his dismissal, the Arbitrator emphasized that Ortiz showed absolutely no remorse.
The Transport Workers Union has always maintained a zero tolerance policy concerning such conduct and never tolerated hatred. The hiring of Robert Ortiz desecrates TWU's achievements in the areas of human dignity and civil rights. It will irreparably damage Local 100's credibility and negatively affect our membership.
Roger, I am a Jew. I remember well my grandparents telling of how the Nazis murdered members of our family during the Holocaust. I am deeply offended and pained knowing you hired an anti-Semite. By your action, Local 100 has endorsed and rewarded a confessed bigot and that is horribly wrong. I respectfully demand that you revisit your decision to employ Ortiz. I expect your timely reply.
Letter, at 1.

  A copy of the above-referenced arbitration decision was attached to the letter. Rubenstein sent copies of the letter to: (1) Gil Rodriguez, the union official in charge of the MABSTOA division of Local 100, in which Rubenstein was employed; (2) employees of two newspapers, the New York Daily News ("Daily News") and the Chief-Leader ("Chief').

  According to the arbitration decision, NYCTA charged, inter alia, that Ortiz "became insubordinate and used biased language in that he made the following disparaging statements against [a supervisor], `What am I, gefilte fish? Why don't you give me gloves?' [and] later stated `Look, he is a typical fucking Jew who has a guilty conscience.'" The arbitration panel heard testimony from Ortiz, from the supervisor, and others, and found that Ortiz had, in fact, made the charged statements. Ortiz maintained that he had used the phrase "chopped liver" instead of "gefilte fish," and the phrase "Typical Jewish guilt" rather than the second statement attributed to him by NYCTA and the supervisor.

  On February 1, 2001, the Daily News published an article about the objection raised by Rubenstein to the decision to hire Ortiz. The article quoted a portion of Rubenstein's letter. Thereafter, on or about February 2, 2001, Toussaint dismissed Rubenstein.

  On February 3, 2001, the Daily News published a second article, in which it reported Rubenstein's dismissal. The article also stated that Rubenstein had, prior to his dismissal, criticized Toussaint's decision to hire Ortiz. The article also quoted Rubenstein as saying that he was the victim of "anti-Semitic retaliation," and quoted Toussaint as saying that the charges against Ortiz were unfounded.

  On February 9, 2001, the Chief published an article that reported Rubenstein's objection to the decision to hire Ortiz, as well as Toussaint's defense of that decision. According to the article, Rubenstein, referring to his dismissal by Toussaint, stated: "As far as I'm concerned, it's a blatant manifestation of anti-Semitic retaliation by the president of the local." The article also quoted the portion of Rubenstein's letter that stated, "I am deeply offended and pained knowing you hired an anti-Semite. . . . The hiring of Robert Ortiz desecrates TWU's achievements in the areas of human dignity and civil rights." According to the article, Toussaint stated that he dismissed Rubenstein as part of a series of routine staff changes that were the natural consequence of new leadership assuming control of Local 100 and that Rubenstein's letter was part of "a last-ditch attempt to blackmail me into keeping him." The article also described, in detail, various individuals' accounts of the circumstances of Ortiz's dismissal by NYCTA.

  Rubenstein commenced the instant action, alleging that his dismissal violated, inter alia, Title VII. Rubenstein filed the complaint on February 7, 2002, and, according to affidavits of service filed by Rubenstein, the complaint was served upon the defendants on February 14, 2002. Thereafter, Toussaint filed the instant counter-claim. In it, he alleges that Rubenstein defamed him by publishing the January 29, 2001 letter — in particular by the letter's statements that Toussaint had: (i) "endorsed and rewarded a confessed bigot"; (ii) "desecrate[d] TWU's achievements in the areas of human dignity and civil rights"; and (iii) "irreparably damage[d] Local 100's credibility." Toussaint also claims that Rubenstein defamed him by stating: (a) as quoted in the February 3, 2001 Daily News article, that Rubenstein was the victim of "anti-Semetic retaliation;" and (b) as quoted in the February 9, 2001 Chief article, that Rubenstein's dismissal was a "blatant manifestation of anti-Semitic retaliation by the president of the local."*fn1

  In support of the instant application, Rubenstein contends that: (1) the allegedly defamatory statements are constitutionally protected statements of opinion; (2) there is no evidence that Rubenstein made the statements with the actual malice requisite to a claim of defamation made by a public figure; (3) there is no evidence that Toussaint ...


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