The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT
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.
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
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
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
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 ...