Piro v Senior Action in a Gay Envt., Inc.

[*1] Piro v Senior Action in a Gay Envt., Inc. 2006 NY Slip Op 51706(U) [13 Misc 3d 1206(A)] Decided on July 3, 2006 Supreme Court, New York County DeGrasse, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 16, 2006; it will not be published in the printed Official Reports.

Decided on July 3, 2006
Supreme Court, New York County

Phillip J. Piro, Plaintiff,

against

Senior Action in a Gay Environment, Inc., Terry Kaelber and Janice Gibeau, Defendants.



602827/04

Leland DeGrasse, J.

Defendants move for summary judgment. Defendant Senior Action in a Gay Environment, Inc. (SAGE) terminated plaintiff's employment as its Director of Group Services on or about February 3, 2004. SAGE, a not-for profit corporation, provides social services and advocacy for lesbian, gay, transgender and transsexual senior citizens. Audrey Rivers, plaintiff's assistant, had resigned her position after being disciplined for poor attendance and tardiness. Rivers gave notice of her resignation by an e-mail dated January 15, 2005 which was addressed to defendant Terry Kaelber, SAGE's Executive Director, defendant Janice Gibeau, its Director of Clinical and Social Services and others. Rivers stated in the e-mail that she had been singled out regarding her attendance record in that "no one cared to correct [plaintiff's] time sheet when he was working his second job at CALLEN-LORDE during SAGE business hours and taking four hour lunches."

Defendants interviewed plaintiff regarding Rivers's allegations. Upon initial questioning by Gibeau, plaintiff stated that he had no other job and was not taking four hour lunches. The answer was truthful when given because as of that time plaintiff had no other job. Later, during a supervision session, Gibeau brought the subject up again by asking plaintiff if there was any basis for Rivers's allegations. Plaintiff declined further discussion of the matter and left the session. Later, plaintiff privately admitted to Kaelber that in the previous year he had been employed by Yale University as the co-leader of a counseling group. The group met on Fridays at the premises of the Callen Lorde Community Health Center. Plaintiff testified that he made the admission after it became obvious to him that defendants had received information from Yale. A comparison of time sheets signed by plaintiff shows that on certain days he worked at Callen Lorde for four hour periods during his workdays at SAGE. Plaintiff attributes the apparent overlap of his time at the two locations to a bookkeeping measure on Yale's part. Plaintiff was informed that his employment was being terminated due to dishonesty on his part. According to the complaint, Gibeau told a SAGE discussion group that plaintiff was fired because he created a "breach of trust." It is also alleged that Kaelber repeated the statement to another SAGE group adding that plaintiff had "ripped someone off." The complaint sets forth [*2]causes of action based upon slander, slander per se and age discrimination in violation of the State and City Human Rights Laws (Executive Law § 296[3-a][a]; Administrative Code of City of New York § 8-107[1].

The slander causes of action are based upon the alleged "breach of trust" and "ripped someone off" statements. The factors to be considered in distinguishing between assertions of fact and nonactionable opinion are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact (Brian v Richardson, 87 NY2d 46, 51 [1995]). In Hollander v Cayton (145 AD2d 605 [1988]) it was held that a statement that a physician was "immoral," "unethical" and "had mismanaged cases" constituted nonactionable opinion. In this court's view, the "breach of trust" statement is analogous and also nonactionable opinion. The use of the term "rip off" was held to be nonactionable opinion in Rizzuto v Nexxus Products Company (641 F Supp 473, 481 [1986], affd 810 F2d 116 [1986]). Similarly, in Telephone Systems International v Cecil (2003 WL 22232908 [SDNY]) a counterclaim defendant's statements that two defendants "were ripping him off" were held to be mere expressions of opinion because they were figurative, hyperbolic and not capable of being disproved. Accordingly, the statement that plaintiff had "ripped someone off" is also nonactionable opinion. In addition, defendants had a qualified privilege to make the statements to the SAGE groups. When a speaker communicates information on a subject matter in which she has an interest or in reference to which she has a duty and such information is communicated to a person with a corresponding interest or duty, a qualified privilege exists (LaScala v D'Angelo, 104 AD2d 930, 931 [1984]).

A plaintiff who alleges discrimination in employment has the initial burden of establishing a prima facie case of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). "To meet this burden, plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (id.). The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent and nondiscriminatory reasons to support the employment decision (id.). Plaintiff has not made the requisite prima facie showing in light of the dishonest conduct cited as the reason for his termination. Also, defendants' evidence of such dishonesty would constitute a legitimate, independent and nondiscriminatory reason to support their decision in the face of a prima facie showing of discrimination. Therefore, plaintiff's age discrimination claims are not viable. For the foregoing reasons, the motion is granted. The Clerk shall enter judgment dismissing the complaint.

Dated: July 3, 2006

J. S. C.