Sullivan v American Airlines, Inc.

[*1] Sullivan v American Airlines, Inc. 2009 NY Slip Op 52625(U) [26 Misc 3d 1202(A)] Decided on December 7, 2009 Supreme Court, Suffolk County Rebolini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2009
Supreme Court, Suffolk County

John Sullivan, John Kennedy, David Virella and Vincent Argentina, Plaintiffs,

against

American Airlines, Inc., Stan Roberts, Edwin P. Argonza, II, Michael A. Chiofalo, Albert Gill and Peter A. Perez, Defendants.



20543/2002



Attorney for Plaintiffs:

Michael G. O'Neill, Esq.

30 Vesey Street, 3rd Floor

New York, NY 10007

Attorney for Defendants

American Airlines, Inc.,

Stan Roberts and Edwin P. Argonza, II:

Morgan, Lewis & Brockius, LLP

101 Park Avenue

New York, NY 10178

Attorneys for Defendants

Michael A. Chiofalo, Albert Gill and Peter A. Perez:

Gabor & Gabor

400 Garden City Plaza, Suite 406

Garden City, NY 11530

William B. Rebolini, J.

Upon the following papers numbered 1 to 140 read on these motions for summary judgment: Notice of Motion Order to Show Cause and supporting papers, 1 - 16; 17 - 96; Answering Affidavits and supporting papers, 97 - 117; Replying Affidavits and supporting papers, 118 - 140.

This defamation action arises out of the 2002 election campaign for the officers and representatives of Air Transport Local 501 which represents employees of defendant American Airlines, Inc. who work at various airports on the East Coast of the United States and Puerto Rico. Plaintiffs John Sullivan, John Kennedy, David Virella and Vincent Argentina were the incumbents union officers and union representatives and defendants Michael A. Chiofalo, Albert Gill and Peter A. Perez were the challengers for such posts. Defendants Stan Roberts and Edwin P. Argonza II are both employed as defendant American Airlines, Inc.'s Ramp Managers at JFK International Airport in New York City.

Plaintiffs' first cause of action is asserted against defendants American Airlines, Inc., Chiofalo, Gil and Perez. It is alleged that defendants Chiofalo, Gil and Perez agreed to a common scheme of portraying plaintiffs as racists in order to discredit them in the eyes of the racially diverse Local 501 membership. To implement this plan these defendants allegedly created false and libelous campaign flyers which were maliciously printed, published and distributed throughout the workplace between February 28 and May 17, 2002. The campaign flyers contained the following language that plaintiffs contend is libelous: (a) "Jack Sullivan, Secretary Treasurer of Local 501, guilty of discrimination by the US government against its members."(b) "Guilty as charged...The Dave Virella administration has been found guilty of discriminating against its own members by the Equal Employment Opportunity Commission...Guilty of unlawful employment practices against its own members." (c) "The Dave Virella administration guilty of discrimination by the US government by its members."(d) "Guilty as charged!...The Dave Virella administration has been found guilty of discriminating against its own members by the Equal Opportunity Commission (EEOC). Guilty of misrepresentation against its own members because of national origin: Hispanic, Black and West Indian...Guilty of unlawful employment practices against its own members."

Plaintiffs also allege that the "Dave Virella administration" as referred to the above statements was commonly known to include plaintiffs Sullivan, Kennedy and Argentina. As against defendant American Airlines, the first cause of action alleges that the defendant was aware of the [*2]defamatory campaign flyers and permitted them to be posted in a locked bulletin board under the exclusive dominion and control of defendant American Airlines, Inc. at LaGuardia Airport in New York and permitted the flyers to remain there for several weeks after the election. In doing so, it is alleged that defendant American Airlines, Inc., adopted the content of these flyers and thus legally liable for publication of the defamatory flyers.

Plaintiffs' second cause of action is asserted against defendants American Airlines, Inc., and its employees Stan Roberts and Edwin P. Argonza II. It is alleged that an unknown person on an unknown date posted a flyer critical of a person identified as "Al" utilizing a cartoon drawing of "Al" saying, "I can't remember if I'm Cuban, Puerto Rican, Irish, English, or what I am, I've told so many lies about it." The flyer which was posted at JFK International Airport also contained the following statement, "Fibber, Fibber = tells lies, half truths, not to be trusted." It is also alleged that the subject flyer emanated from American Airlines' Puerto Rico facility; that defendant Gil is of Cuban extraction, but had represented himself as being Puerto Rican at the San Juan Facility in an effort to be elected to a union position, and thus, that the criticism of defendant Gil was accurate. Plaintiffs deny any responsibility for the flyer. In April, 2002, the plaintiffs were engaged in permissible campaign activities at the JFK Ramp facility when defendants Roberts and Argonza and others entered into a scheme to injure the plaintiffs by intentionally destroying their reputations. To effect this scheme, it is alleged that defendants Roberts and Argonza and others purported to entertain and investigate allegations that the plaintiffs had posted the flyer critical of defendant Gil in violation of the Airline's "zero tolerance" policy regarding racially offensive materials in the workplace. Using the pretext of the "zero tolerance" policy defendants had plaintiffs Sullivan, Virella and Argentina "removed" from service on or about April 20, 2002 meaning they were suspended with pay but barred from the Airline's premises.

The second cause of action also alleges that as a result of being "removed" from service, the plaintiffs could not actively campaign for election, and credence was given to the aforementioned libelous statements allegedly made by defendants Chiofalo, Gil and Perez. As a result of being barred from the Airline's premises, the plaintiffs could not respond to the false accusations of racism made by their election adversaries or to management charges of violating the Airlines rules against racially offensive conduct. On May 28, 2002 and May 30, 2002, the plaintiffs each received a "Final Advisory" stating, in pertinent part, "On April 13, 2002, you were observed posting election campaign materials...Included amongst the postings were cartoons at least two of which were highly demeaning to another employee and were either racially offensive and/or harassing in nature." One of the cartoons was the cartoon depicting defendant Gil. The "Final Advisories" also notified each of the plaintiffs that their employment was terminated. The content of the Final Advisories were circulated to and by numerous individuals, including defendants Roberts and Argonza, at the plaintiffs' workplace and it became common knowledge that they had been accused of racially offensive conduct and had been fired because of it. As a result, the plaintiffs' reputations were damaged and they were subjected to scorn and contempt.

The second cause of action further alleges that on June 22, 2002, defendant Airlines reinstated the plaintiffs but that as a direct and proximate result of the foregoing false statements [*3]each of the plaintiffs has suffered special damages including plaintiffs Sullivan and Virella who lost their re-election bids, were ousted from office and lost the benefits of those positions. In addition, each of the plaintiffs have been shunned and ostracized in the workplace by fellow workers. It is further alleged that at all times defendants Roberts and Argonza were acting within the scope of their employment within American Airlines, Inc.

Plaintiff's third cause of action is asserted only against defendant Chiofalo and alleges that defendant Chiofalo on June 18, 2002, stated publically at a union meeting during a discussion of the plaintiffs' terminations that, "you don't understand. Those guys did this. This happened," indicating that the plaintiffs were indeed guilty of posting racially offensive materials as charged by defendant American Airlines, Inc. Plaintiffs contend that defendant Chiofalo's statements, defamatory on their face, carried extra weight because of his position as the President of the union and were false and known by him to be false when he spoke them. It is further alleged that defendant Chiofalo was motivated by actual malice in making his statements.

All the defendants now move for summary judgment dismissing the plaintiffs' claims against them. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).

In requesting summary judgment on the plaintiffs' first cause of action defendants Chiofalo, Gill and Perez contend that the written statements regarding Jack Sullivan and the Virella administration allegedly published by these defendants are not defamatory because they are true. Defendants also assert that the statements were privileged because the plaintiffs are public officials and because the statements relate to litigation. In support, defendants submit, among other things, their personal affidavits and an excerpt from the deposition testimony given by plaintiff Argentina.

Defamation is defined as making a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or to induce an evil opinion him or her in the minds of right-thinking persons, and to deprive him or her of their friendly intercourse in society (Foster v. Churchill,87 NY2d 744 [1996]). The elements of a cause of action for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and which either causes special harm or constitutes defamation per se (see, Salvatore v. Kumar,45 AD3d 560 [2nd Dept., 2007] lv app den 10 NY3d 703). The tort of libel arises from the publication a statement about an individual that is both false and defamatory (Klepetko v. Reisman,41 AD3d 551 [2nd Dept., 2007]). [*4]

Initially, the Court notes that defendants Chiofalo, Perez and Gil by their verified answer deny that they published the campaign materials claimed by the plaintiffs to defamatory; however, each of the defendants by their personal affidavits admit that these material were disseminated by their campaign. Contrary to the defendants' counsel's contention, the defendants have not made a prima facie showing they were not responsible for publishing the offending campaign materials. Moreover, the statements in the defendants' campaign literature accusing the plaintiffs of discriminating against members of Local 501 based upon their racial background were meant to disgrace them, or to induce an evil opinion of them, and thus, are of a defamatory nature. Racism has been recognized for centuries-at first by a few people, and later by many more-as a revolting moral evil (see, Hernandez v. Robles, 7 NY3d 338 [2006]). Clearly then, defendants have not established that the content of the materials, if untrue, is not defamatory.

Truth is an absolute defense to a libel action (see, Matovcik v. Times Beacon Record Newspapers,46 AD3d 636 [2nd Dept., 2007]; Kamalian v. Reader's Digest Ass'n., Inc., 29 AD3d 527 [2nd Dept., 2006]). Claims of truth and privilege are affirmative defenses to be raised in the answer, and once raised in the answer, defendants may move for summary judgment. Upon a prima facie showing of truthfulness the burden will shift to the plaintiffs (see, Garcia v. Puccio, 62 AD3d 598 [1st Dept., 2009]).

In support of their claims that the statements concerning the plaintiffs are not defamatory because they are true, defendants Chiofalo, Perez and Gill point to an unauthenticated document attached as an exhibit to the moving papers. The document bears the letterhead of the U.S. Equal Employment Opportunity Commission [EEOC] and is entitled, DETERMINATION, and sets forth the names of eight individuals as Charging Parties and lists American Airlines, Inc. at JFK International Airport, as Respondent. By its content, the determination states that the EEOC had "reasonable cause to believe" the Airlines had discriminated against the charging parties, and a similarly-situated class of individuals, based upon their race, African-American, or national origin, Hispanic, by terminating them for violating the Airline's Rules and Regulations while it did not terminate White employees who committed the same or similar violations. The letter is signed by District Director of the EEOC and is dated September 19, 2000. There is no mention of either the Union or any of the individual plaintiffs in the EEOC determination, dated September 19, 2000.

The individual defendants also submit a letter, dated September 19, 2000, by an investigator from the EEOC addressed to the then-President of Local 501, John Buckley, which advises Mr. Buckley that the EEOC wished to initiate a "conciliation process" with reference to the Letter of Determination in order to remedy the "discriminatory employment practices" found to have occurred. It appears to apply to the EEOC's Determination of that same date. The content of this letter consistently refers to a single "Respondent" and appears to apply to the Airlines and not the Union. A subsequent letter, dated October 23, 2000, signed by plaintiff David Virella in capacity as 1st Executive Vice President of Local 501, and addressed to the EEOC investigator sets forth the Union's response to the proposed conciliation. Again, virtually all the terms of the proposed conciliation referred to the Respondent, meaning the Airlines. The only reference to the Union was a statement to the effect, "They [employees] can also notify the Local Union offices in writing when [*5]or verbally of there [sic] charge of discrimination. The Local Union will allow the Commission to review this procedure."

In addition, the individual defendants submit a copy of a complaint filed by the EEOC in the United States District Court for the Eastern District of New York against American Airlines, Inc. and Local 501. They point to paragraph 13 of this complaint wherein it is alleged that the Union discriminated against certain employees and other similarly situated employees "because of their race, Black, by making an agreement with American and Local 501, despite being the employees' bargaining unit representative, would not raise the issue in any grievances brought by disciplined employees against American, that these and similarly situated employees were treated differently because of their race." They also point to paragraph 14 of the EEOC complaint wherein it is alleged that the Union's actions complained of in the preceding paragraph were intentional and reckless. They further point to the paragraph 15 of the EEOC's complaint wherein it is alleged that, "At all relevant times, American and Local 501 acted with malice and reckless indifference to the federally protected rights..." Defendants have adduced no proof in evidentiary form as to the current status of the action in the Federal Court, and thus, whether the claims against the Union have been sustained.

Nothing in the documents or affidavits submitted in support of the motion by defendants Chiofalo, Perez and Gill establishes that the plaintiffs have been found guilty by the U.S. government or the EEOC of discriminating against the union's members who are of African-American or Hispanic heritage. Hence, these defendants have failed to make a prima facie showing of entitlement to judgment as a matter of law with respect to the truth of their allegations about the plaintiffs that the statements contained in their campaign literature are truthful (see, Sheridan v. Carter, 48 AD3d 444 [2nd Dept., 2008]).

The contention by defendants Chiofalo, Perez and Gill, that the defamatory statements contained in their campaign literature regarding the plaintiffs were privileged because the plaintiffs are public officials is also without merit. Plaintiffs, in their capacity as officers and representatives of a union representing a private company's employees clearly do not fall within any definition of a public officer. Assuming, arguendo, that defendants meant to say that their statements are privileged because plaintiffs are public figures, that contention is equally unavailing. Whether a plaintiff is a public figure for purposes of a defamation action is, in the first instance, a question of law to be determined by the Court (see, White v. Berkshire-Hathway, 195 Misc 2d 605 [Erie County Supreme Court, 2003] aff'd 5 AD3d 1083 [4th Dept., 2004]), and on that question, the defendant has the burden of proof (see, Krauss v. Globe International, Inc., 251 AD2d 191 [1st Dept., 1998]). "Designation as a public figure may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. While the extent to which one becomes a public figure is a matter of degree the essential element underlying the category of public figures is that the publicized person has taken an affirmative step [*6]to attract public attention [citations omitted]" (White v. Tarbell,284 AD2d 888 [3rd Dept., 2001]). Hence, a plaintiff may be held to be a public figure if he or she has thrust himself or herself to the forefront of a particular public controversy in order to influence the resolution of the issues involved (see, Samuels v. Berger, 191 AD2d 627 [2nd Dept., 1993]).

Where the party is a public figure, that party must allege that the statement was made with "actual malice,"defined as either knowledge of the falsehood or recklessness as to the falsehood. Where the party alleging defamation is not a public figure a showing of common law malice, or ill will, is required (see, Town of Massena v. Healthcare Underwriters Mutual Ins. Co., 98 NY2d 435 [2002]; Tortoso v. Metlife Auto & Home Ins. Co.,21 AD3d 276 [1st Dept., 2008]). As a general rule, the participants in a union elections are not public figures (see, NY PJI §3:23 at 216 [2009]). The plaintiffs herein as candidates for offices in a union representing a private company's employees, are not public figures.

The individual defendants' contention that the statements contained in their campaign flyers enjoy the protection of an absolute privilege for statements made in the course of, and relating to, judicial proceedings is without merit. Judicial proceedings are among the settings in which an absolute privilege is recognized. The rule is that a statement made in the course of a legal proceeding is absolutely privileged if it is at all pertinent to the litigation. The privilege extends to the judge, jurors, counsel, witnesses and the parties to the proceeding (see, Sexter & Warmflash, P.C. v. Margrabe, 38 AD3d 163 [1st Dept., 2007]). The grant of absolute immunity that attaches to statements made in the course of judicial proceeding applies not only to proceedings before a court but also to proceedings before tribunals having attributes similar to those of courts. The courts have extended the absolute privilege to a wide array of hearings held by administrative agencies, finding such hearings to be in substance judicial (see, Allan and Allan Arts Ltd. v. Rosenblum,201 AD2d 136 [2nd Dept., 1994] app den 95 NY2d 921 cert den 516 US 914). While the proceedings before the EEOC were adversarial in nature, the statements made by the defendants were not made in the course of the proceedings before the EEOC, and were made after the EEOC had made its determination. Thus, these defendants were not conferred with an absolute privilege as they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, judicial, quasi-judicial or administrative hearings (see, Herlihy v. Metropolitan Museum of Art, 214 AD2d 250 [1st Dept., 1995]).

Moreover, defendants have failed to establish a prima facie showing that the statements in their campaign flyers are absolutely privileged as a fair and true reportage of an official proceeding embodied at Civil Rights Law §74. That statute insulates a person, firm or corporation from actions in defamation for the publication of a fair and true report of any judicial proceeding (see, Dibble v. WROC TV Channel 8, 142 AD2d 966 [4th Dept., 1988]). This provision requires only that a statement be "substantially accurate" for the privilege to attach, and "substantially accurate" is interpreted liberally (see, Daniel Goldreyer, Ltd. v. Van De Wetering, 217 AD2d 434 [1st Dept., 1995]) A report is substantially accurate if, despite minor inaccuracies, it does not produce a different effect on a reader than would a report containing the precise truth. A report cannot be said to substantially accurate, however, if it would have a different effect on the mind of the recipient than [*7]the actual truth. In other words, Section 74 does not afford protection if the specific statements at issue, considered in their context, suggest more serious conduct than that actually suggested in the official proceeding (see, Karedes v. Ackerley Group, Inc., 423 F3d 107 [2d Cir. NY 2005]). A statement is not a fair and true report of a judicial proceeding under Section 74 if it creates a false impression as to the nature and severity of the claims against the plaintiff (see, Pisani v. Staten Island University Hospital, 440 FSupp2d 168 [EDNY, 2006]; Daniel Goldreyer, Ltd. v Van De Wetering,217 AD2d 434 [1st Dept., 1995]). At bar, a reasonable jury could conclude that the defendants' campaign flyers suggested more serious conduct than was actually suggested in the proceeding before the EEOC.

Defendants have also alleged that they are protected because their "speech" concerned union matters. Even though a statement is defamatory, a qualified privilege exists where the communication is made to persons who have some common interest in the subject matter (see, Town of Massena v. Healthcare Underwriters Mutual Ins. Co., 98 NY2d 435 [2002]). The law recognizes a qualified privilege which may attach to communications within a business organization and such groups as membership associations, lodges and labor unions. A qualified privilege is limited to good faith, an interest to be upheld, a statement limited in scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The defendant bears the burden of proof on the issue of privilege and proof of malice in the making of a statement destroys the qualified privilege of the statement (see, Garriga v. Townsend, 285 AD 199 [3rd Dept., 1954]). The deposition testimony given by defendants Gil, Chiofalo and Perez reflects that none of them could recall actually seeing the word, "guilty" in any of the EEOC determinations and that there existed a decidedly contentious relationship between the two slates of candidates. Such testimony raises triable issues of fact as to whether the defendants were motivated by malice sufficient to destroy any qualified privilege that may be afforded them for the statements contained in their campaign literature (see, Herlihy v. Metropolitan Museum of Art, 214 AD2d 250 [1st Dept., 1995]).

In view of the foregoing, the individual defendants Chiofalo, Perez and Gil are denied summary judgment on the plaintiffs' first cause of action.

Defendant Chiofalo is also denied summary judgment on the plaintiffs' third cause of action as against him. Defendant Chiofalo contends that the statements he made at the union meeting held on June 18, 2002 constitute an opinion, and thus, are not actionable as defamatory.

Expressions of opinion as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation. In determining whether a statement constitutes an opinion or an assertion of fact, for the purposes of a defamation action, the court considers: (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 (see, Mann v. Abel,10 NY3d 271 [2008]). The issue of distinguishing between actionable fact and non-actionable opinion is a question of law for the [*8]court (see, Farrow v. O'Connor, Redd, Gollihue & Sklarin, LLP,51 AD3d 626 [2nd Dept., 2008]), and must be answered on the basis of what the reasonable listener would understand the statement to mean, first considering the content of the whole communication, including its tone and purpose. A mixed statement of opinion and fact is actionable inasmuch as it gives rise to the inference that such statement is based upon certain facts known to the speaker that are undisclosed to the listener and are detrimental to the person who is the subject of the opinion. Moreover, a statement which concerns a person in his or her trade or business and tends to injure him or her therein is actionable per se (see, Rossi v. Attanasio,48 AD3d 1025 [3rd Dept., 2008]). Here, defendant Chiofalo's statements at the union meeting constituted an actionable mixed statement of opinion and fact. The average person, with knowledge that defendant in his capacity as the current President of Local 501was familiar with the circumstances surrounding the termination of the plaintiffs' employment, would reasonably believe that the opinions expressed by him were based upon facts known by him and undisclosed during the course of the communication (see, id.). Defendant Chiofalo thus failed to meet his initial burden of establishing a defense of justification or privilege sufficient to warrant judgment as a matter of law with respect to this cause of action (see, id;see also, Zulawski v. Taylor,63 AD3d 1552 [4th Dept., 2009] lv app den 2009 NY Slip Op 7121).

In moving for summary judgment on plaintiffs' first cause of action alleging that the defamatory campaign literature referring to the plaintiffs was posted on a company bulletin board within the exclusive dominion and control of the Airline, defendant American Airlines contends that plaintiffs' defamation claim against it must fail because (1) American Airlines neither created nor published the allegedly defamatory campaign literature at issue; and (2) the theory of respondeat superior will not support a finding of liability against American Airlines for the content of the literature, even if that literature was, in fact, defamatory.

In support of this contention, the Airline defendant submits excerpts from the deposition testimony given by plaintiffs Sullivan and Virella and Argentina, defendants Gil, Perez, Chiofalo and Argonza and by non-party Vincent Avagliano. The Airline defendant maintains that the selected deposition testimony establishes that defendant American Airlines did not create the defamatory campaign literature, that plaintiffs did not know who posted the campaign flyer inside the bulletin board when the flyer was posted in the bulletin board, nor do the plaintiffs know how long the flyer remained there. The Airline defendant also contends that this deposition testimony establishes that the subject bulletin board was not one designated by the Airlines for the posting of campaign literature, and that the plaintiffs have submitted no evidence that material could not be posted on the bulletin board only by someone with access to the key to its lock.

Initially, the Court notes that the plaintiffs have not alleged that the campaign literature in question was created by the Airline defendant, rather, the essence of their claim is that this defendant permitted or facilitated that the publication of the defamatory campaign literature.

Under the doctrine of respondeat superior, an employer is answerable for the torts of an employee who acts within the scope of his or her employment. The purpose of the rule is to render the employer responsible, in proper cases, for the employee's tortious acts, which although errant, [*9]were done in furtherance of the employer's business (see, Rausman v. Baugh, 248 AD2d 8 [2nd Dept., 1998]). Whether or not an employer is liable for the defamatory statements of its employees depends upon whether the statement were made in the course of employment (see, Calafiore v. Penna, 289 AD2d 359 [2nd Dept., 2001] lv app den 97 NY2d 612). An act falls within the scope of an employee's duties when the employee is doing his master's work, no matter how irregularly, or with what disregard of instructions. However, there is no respondeat superior liability for torts committed for personal motives unrelated to the furtherance of the employer's business. The factors to be considered in determining whether an employee's actions were within the scope of his employment are the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonable have anticipated (see, Murray v. Watervliet City School District, 130 AD2d 830 [3rd Dept., 1987] quoting Riviello v. Waldron, 47 NY2d 297 [1979]).

"An act, although forbidden or done in a forbidden manner, may be within the scope of employment. The test of the master's responsibility for the act of his servant is not whether such an act was done according to instructions of the master to the servant, but whether it was done within the general scope of his employment and in connection with the prosecution of the master's business and in furtherance thereof. The employer, although a corporation, will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master's orders. The master who puts the servant in a place of trust and responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion goes before the strict line of his duty or authority and inflicts an unjustifiable injury upon another [citations omitted]"(Brown v. Great Atlantic & Pacific Tea Co., 275 AD 304, 306 [1st Dept., 1949]).

Pursuant to the doctrine of respondeat superior, an employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. Because the determination of either a particular act was within the scope of the servant's employment is so heavily dependent on factual considerations, the question is ordinarily one for the jury (see, Corson v. City of New York, 290 AD2d 408 [2nd Dept., 2002]).

Applying these principles to the matter at hand, the Court finds that the Airline defendant has failed to make a prima facie showing of non-liability under the doctrine of respondeat superior, and, in any event, the plaintiffs' submissions demonstrate the existence of triable issues of fact in this regard. In particular, defendant has submitted no evidentiary proof, in admissible form, to sustain its burden on this motion of demonstrating that the Airline defendant was not aware that the campaign flyer defaming the plaintiffs had been posted within the company's locked bulletin board for an extended period of time. Notably absent from the defendants' initial moving papers is an [*10]affidavit from any of the defendant's employees who were responsible for overseeing the materials posted on the board and who possessed the key to its lock. Defendants have attached affidavits to their reply papers from two airline employees attesting to the fact that they were responsible for holding the keys to the bulletin board and generally overseeing the materials posted thereon. These affidavits having been improperly submitted for the first time in defendant's reply papers can not be considered by the Court in determining whether or not defendants demonstrated their prima facie entitlement to judgment as a matter of law (see, Morales v. Coram Materials Corp., 51 AD3d 86 [2nd Dept., 2008]; GJF Construction Corp. v. Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2nd Dept., 2006]; Adler v. Suffolk County Water Authority, 306 AD2d 229 [2nd Dept., 2003]).

The plaintiffs' second cause of action against the Airlines and two of its management personnel, defendants Stan Roberts and Edwin Argonza, alleges the plaintiffs were defamed by the content of the "Final Advisory" letters. The defendants contend that the statements in the final advisories to the effect that the plaintiffs posted "racially offensive" cartoons in "flagrant violation" of the Airline's Rule 32 which are alleged to be defamatory are non-actionable because: they are true; the statements are honest expressions of opinion; the Final Advisories are qualifiedly privileged; and the plaintiffs have adduced no evidence of malice. Defendants also contend that the claim set forth in the second cause of action has already been settled, and any challenged to the settlement is preempted by the RLA [FN1]. Defendants further contend there is no basis to impute liability to defendants Roberts and Argonza. The affidavits of defendant American Airlines' representatives, William Morton, Managing Director of Airport Services, and James Weel, Managing Director of Employee Relations, constitute evidence which was improperly submitted for the first time with defendants' reply papers. Moreover, the affidavits are not in admissible form because they were signed and notarized in the State of Texas, and are not accompanied by the required certificate of conformity with the laws of the State of Texas. For an out-of-state affidavit to be admissible, it must comply with CPLR §2309 [c] which requires that an out-of-state affidavit be accompanied by a certificate of conformity (see, Real Property Law § 299-a [1]; PRA III, LLC v. Gonzalez, 54 AD3d 917 [2nd Dept., 2008]; see also, NY CLS Real P § 299-a [2008]). In the absence of a certificate of conformity, the affidavits are in effect unsworn (see, Worldwide Asset Purch., LLC v. Simpson, 17 Misc 3d 1128(A) [Auburn City Ct., 2007]). Consequently, these affidavits have not considered by the Court.

In opposition, the plaintiffs contend the content of the Final Advisories were circulated to and by numerous individuals, including defendants Roberts and Argonza, at the plaintiffs' workplace and it became common knowledge that the plaintiffs had been accused of racially offensive conduct and had been fired because of it. As a result, plaintiffs argue, their reputations were damaged and they were subjected to scorn and contempt.

The Court rejects the defendants' characterization of the allegedly defamatory statements contained in the Final Advisories as nonactionable opinion since these statements may be objectively [*11]verified (see generally, Gross v. New York Times Co., 82 NY2d 146 [1993]; Immuno AG v. Moor-Jankowski, 77 NY2d 235, cert denied 500 US 954 [1991; compare, Burns v. Palazola, 22 AD3d 779 [2nd Dept., 2005]). The statements regarding the plaintiffs' termination, which were disseminated to management personnel and other employees were, however, protected by the qualified "common interest" privilege (Priovolos v. St. Barnabas Hospital, 1 AD3d 126 [1st Dept., 2003];Serratore v. American Port Services, 293 AD2d 464 [2nd Dept., 2002]; Furci v. A.F.C. Contr. Enters., 255 AD2d 550 [2nd Dept., 1998]; Murganti v. Weber, 248 AD2d 208 [1st Dept., 1998]). In order to overcome a qualified privilege, the plaintiffs must demonstrate that the communication was made in bad faith and was motivated solely by malice (see, Liberman v. Gelstein, 80 NY2d 429 [1992];Shover v. Instant Whip Processors, 240 AD2d 560 [2nd Dept., 1997])

Here, the plaintiffs' submissions raise triable issues of fact as to whether the defendants were motivated by malice sufficient to destroy any qualified privilege that may be afforded them for the statements made in the letters terminating the plaintiffs' employment and the subsequent dissemination of their content.

In addition, the Court denies defendants' request for summary judgment on the basis that the claim set forth in the second cause of action has already been settled, and that any challenge to the settlement is preempted by the RLA.

The airlines defendants are not entitled to summary judgment based upon the affirmative defense of release. This affirmative defense was not raised in their answer, and more importantly, the evidence submitted by the defendants in support of the motion is inadequate to make the prima facie showing entitling them to summary judgment on the ground asserted (see, Kersbergen v. Wade,193 AD2d 583 [2nd Dept., 1993]; see also, Martin v. Traver, 19 AD2d 571 [3rd Dept., 1963]). Nor have the defendants established that the plaintiffs' claims set forth in the second cause of action have been preempted by the Federal Railway Labor Act [RLA].

The Railway Labor Act requires the establishment of arbitration panels to deal with disputes between employers and employees in the airline industry. These Boards are comprised of members selected by the air carriers and by labor organizations representing their employees. Their jurisdiction extends to disputes growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions. Disputes that are spawned by grievances or by interpretations or applications of collective bargaining agreements, known as "minor disputes," must be resolved exclusively under the arbitration procedures established by the Railway Labor Act. Thus, any state-law claim determined to be a "minor dispute" within the meaning of the Railway Labor Act is preempted, and the state court is without subject matter jurisdiction to entertain a claim of that sort (see, Gay v. Carlson, 60 F3d 83 [2nd Cir. NY, 1995]).

Where, as here, the plaintiffs' cause of action falls squarely within state-law claims of defamation, they are not pre-empted by the RLA (see, Harris v. Hirsh,86 NY2d 207 [1995]; Gay v. Carlson,60 F3d 83 [2nd Cir. NY, 1995]). In any event, the Federal Court of Appeals has already ruled that the issues in the instant case are appropriately resolved in this State's courts (see, Sullivan [*12]v. American Airlines, Inc., 424 F3d 267 [2nd Cir. NY, 2005]). The request by the Airlines defendants for summary judgment dismissing the plaintiffs' second cause of action is therefore denied.

Accordingly, it is

ORDERED that for the purposes of this determination these two motions for summary judgment are consolidated and decided together; and it is further

ORDERED that the motion by defendants Michael A. Chiofalo, Albert Gill and Peter A. Perez for summary judgment is denied; and it is further

ORDERED that this motion by defendants American Airlines, Stan Roberts and Edwin P. Argonza, II for summary judgment dismissing the complaint against them is also denied.

Dated:December, 2009

HON. WILLIAM B. REBOLINI, J.S.C. Footnotes

Footnote 1:Defendants are referring to the Federal Railway Labor Act, (45 UCS §§ 151 et seq.), which, inter alia, makes provision for the regulation of labor disputes between rail and airway carriers and their employees.