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Posting That Employer Is "Racist" Because "He's Voting for Trump" Isn't Defamation
From Espinoza v. CGJC Holdings LLC, decided today by Judge Denise Cote (S.D.N.Y.):
The following facts are taken from the pleadings. They are assumed to be true for the purposes of this motion.
Espinoza worked for approximately one year as a phone server at Joe and Pat's Pizzeria and Restaurant …, which is owned by CGJC Holdings. The individual defendants in this action … are all co-owners and managers of the Restaurant.
Defendants allege that they chose to terminate Espinoza's employment at the Restaurant after Espinoza posted the following statement as a "story" on her Instagram social media page on October 22, 2020 (the "October 2020 Post"):
[I]f you thinking about coming to eat at my job, dont [because] my manager told me he's voting for trump dont give racists your money !!!
Defendants further allege that the October 2020 Post was publicly available to "thousands" of people, that the Restaurant was the "only employer" Espinoza identified in her public profile at the time, and that it was "widely known" that the individual defendants were owners or managers of the Restaurant.
Defendants assert that they "requested that Espinoza take down" the October 2020 Post. After she "failed or refused to do so," they terminated her employment.
Espinoza initiated this action on October 17, 2023. An Opinion of July 23, 2024 granted in part defendants' April 26, 2024 motion to dismiss Espinoza's first amended complaint.
Espinoza's claims for a hostile work environment based on her race, gender, sexual orientation and disability, and for retaliatory termination of her employment survive. Espinoza's claim of retaliation is premised on her assertion that she was fired due to her complaints … that the bartender had sexually harassed her. Discovery is ongoing.
The defendants counterclaimed "against Espinoza for common law defamation, tortious interference with business relations, and breach of fiduciary duty," but the court dismissed those counterclaims. First, New York defamation law requires (among other things) that "there must be (A) a writing, it must be (B) defamatory, it must be (C) factual—that is, not opinion—and it must be (D) about the [counterclaimant], not just a general statement":
"Determining whether a statement is an allegation of fact or mere opinion is a legal question for the court." … Even if a statement is found to contain opinion, "the court must next determine whether the statement is 'pure opinion' (and thus non-actionable) or 'mixed opinion' (and therefore actionable)." Pure opinion is a "statement of opinion which is accompanied by a recitation of the facts upon which it is based or does not imply that it is based on undisclosed facts." Mixed opinion, in contrast, "is an opinion that does imply a basis in undisclosed facts, or facts known only to the author, and is actionable."
The accusation in the October 2020 Post that the Trump voter is a racist is a statement of pure opinion. The October 2020 Post had two components. First, Espinoza made a factual claim that her manager told her he was voting for President Trump. Second, based on that factual claim, she asserted an opinion: that the manager was a racist. Because the statement of opinion discloses the facts on which it is based, it is not actionable.
The defendants assert that the "style, tone, and manner" of the October 2020 Post suggest that Espinoza "is in possession of additional, undisclosed facts supporting her characterization of all of the Defendants … as racists." Nothing in the October 2020 Post implies a basis in "undisclosed facts, or facts known only to the author." Accordingly, the reference to a racist in the October 2020 Post is non-actionable pure opinion.
The defendants further argue that declaring them to be "racists" is an actionable statement of fact, citing to La Liberte v. Reid (2d Cir. 2020). In that case, the defendant published a social media post juxtaposing a 1957 photograph of a white woman screaming at the Little Rock Nine with a photograph of the plaintiff with her mouth open facing a minority teenager at a city council meeting, and included the statement "[h]istory sometimes repeats." … [T]he Second Circuit held that a reasonable reader would understand that the plaintiff had screamed at the teenager, which he and the plaintiff denied had happened. Because such an "accusation of concrete, wrongful conduct" could "be proved to be either true or false," it was actionable.
The defendants here do not similarly allege that Espinoza accused them of having engaged in concrete, wrongful conduct that could be proved to be true or false. Instead, they allege that Espinoza accused them of "being a racist in some abstract sense," which is non-actionable opinion. Accordingly, Espinoza's motion to dismiss defendants' defamation counterclaim is granted.
The court likewise dismissed the tortious interference with business relations claim, in part because "defendants identify no wrongful or improper conduct by Espinoza aside from the October 2020 Post, which, as discussed, is a non-actionable statement of opinion." And the court dismissed the breach of fiduciary duty claim:
A fiduciary relationship exists "when one person is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation." "[E]mployment relationships, without more, do not create fiduciary relationships." Instead, a plaintiff must show "special circumstances" transforming the employment relationship into a fiduciary one. These may be present "where the party that relied on the relationship reposed confidence in the other party and reasonably relied on the other's superior expertise or knowledge."
Defendants allege that Espinoza's responsibilities and duties as a server included promoting the restaurant and engaging with customers, and that Espinoza breached these duties by publishing the October 2020 Post. These allegations merely recount Espinoza's status as an employee. Defendants have failed to allege any special circumstances creating a fiduciary relationship.
{Defendants argue in opposition to this motion to dismiss their counterclaims that they have pleaded all of the requirements for a faithless servant claim under New York law. They did not, however, assert this counterclaim. In any event, that claim would also fail as a matter of law. Defendants plausibly allege only that Espinoza published the October 2020 Post, not that she engaged in the "persistent pattern of disloyalty that courts have found necessary to bring conduct within the confines of the doctrine.}
