Summary
In Dunlop-McCullen, the court found that an elected president of a labor union with 4,000 members was a "public figure" because he had campaigned several times, participated in committees, controlled and appeared frequently in the union's newspaper, and regularly met with federal, state, and local officials on the union's behalf.
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00 Civ. 3274 (JSR) (JCF)
February 21, 2002
REPORT AND RECOMMENDATION
This is a defamation action brought pro se by James Dunlop-McCullen, the president of a union local, who alleges that the defendants, all members of the Executive Board of the union (the "Board"), published a number of false statements about him. Specifically, Mr. Dunlop-McCullen alleges that: (1) Gail Rogers and Ronald Chencinski made and published a petition which contained seventeen libelous statements about the plaintiff; (2) Kenneth Bordieri made and published four defamatory statements about the plaintiff; (3) Pierre Grace made sixteen defamatory statements to the Board regarding the plaintiff's performance as union president; and finally (4) Ms. Rogers, Mr. Bordieri, and Mr. Chencinski conspired with each other to make the defamatory statements in the petition.
The defendants now move for summary judgment on the plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. The defendants also move for summary judgment on their counterclaims against Mr. Dunlop-McCullen, which allege that the plaintiff commenced this action in direct retaliation for the defendants' exercising their protected right to criticize the plaintiff's conduct as president of the union in violation of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a). For the following reasons, I recommend that summary judgment be granted as to the plaintiff's claims but denied as to the defendants' counterclaims.
Background for Defamation Claims
The facts stated in this section are undisputed unless stated otherwise.
Mr. Dunlop-McCullen is currently the president of Local 1-S, Retail, Wholesale and Department Store Union ("Local 1-S" or the "Union"), which represents approximately 4,000 employees at four Macy's stores in the New York metropolitan area. The plaintiff first became president of the Union in June 1998 when the previously-elected president resigned. Mr. Dunlop-McCullen was then elected as president to a three-year term in January 1999. (Defendants' Local Civil Rule 56.1 Statement of Undisputed Material Facts ("Def. 56.1 Statement"), ¶¶ 10-12, 14, 15).
All four defendants are members of the Union and elected members of the Board. (Def. 56.1 Statement, ¶¶ 1, 2, 5-7). Three of the defendants, Ms. Rogers, Mr. Bordieri, and Mr. Chencinski, ran in the 1998-1999 election on a ticket opposing the plaintiff and lost. (Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment ("Pl. Brief") at 5).
The Union's parent organizations are the Retail, Wholesale and Department Store Union ("RWDSU") and the United Food and Commercial Workers Union ("UFCW"). (Def. 56.1 Statement, ¶ 17). The administration of the Union in recent years has been in a state of flux because it is currently subject to three constitutions: the Local 1-S Constitution, the RWDSU Constitution, and the UFCW Constitution. Disagreements have frequently arisen at Board meetings concerning which constitution applies to various issues. (Def. 56.1 Statement, ¶¶ 63, 65-67).
A. The Petition
In the spring of 1999, a petition criticizing Mr. Dunlop-McCullen's administration in a number of areas began circulating among the Union's membership. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Memo.") at 4-5). The plaintiff's defamation claims against defendants Rogers and Chencinski originate from statements made in this document. (Plaintiff's Amended Complaint ("Pl. Amend. Comp.") attached as Exh. B to Defendants' Notice of Removal of Civil Action Pursuant to 28 U.S.C. § 1441, at 4-6). Calling for the removal of Mr. Dunlop-McCullen as president, it accused the plaintiff of the following:
McCullen has failed to call monthly meetings of the membership nor has he had quarterly meetings of the membership to keep them informed and to enable [them] to voice their concerns.
. . .
McCullen has failed to get the approval of the Executive Board for many of his disbursements of funds. He has purchased tickets to fundraisers without the approval of the Executive Board. He has allowed the tickets that were purchased without the approval of the Executive Board to be used by Non-union members including the child of Vice-President Teddy Been. McCullen has purchased computer equipment without the approval of the Board and is sending members to Maryland for a training session without the approval of the Executive Board. He has purchased or is leasing cellular phones without the Board's approval.
McCullen authorized lunch for the office staff and his campaign workers, a total of 25 people, paid at Union expense from petty cash.
McCullen also hired an attorney specifically to handle the case of the Union against Pascarella et al. However, this attorney has billed the Local for Thousands of dollars unrelated to his original engagement. Included in these fees were charges to the Union of a political nature in that McCullen had this attorney oversee the recent election of Officers. In addition this attorney was also present at a hearing conducted by the RWDSU concerning charges against McCullen for his violations of the Local 1-S Constitution. Both of these instances were beyond the scope of his engagement and not approved by the Executive Board.
. . .
McCullen has month after month attempted to have the Executive Board approve raises for his new officers. This is in direct violation of Article 10 Section 18 of the RWDSU Constitution which states that the salary of Local Union Officers be established by the Local Union bylaws. If not established by the bylaws, the salaries are to be approved by the Local Union membership at the meeting at which the officers are elected. After the election, salaries may not be increased except as otherwise provided in the Local Union bylaws.
. . .
McCullen also established a system of "Comp time" at the Union Office without the approval of the Executive Board.
. . .
McCullen failed to provide monthly statements to the Executive Board for January through April of 1999. In fact, McCullen attempted to deceive the Executive Board by stating that the UFCW only required Quarterly reports. In addition, McCullen is in violation of Article 36(A) which states that three Local Union Executive Board members, by virtue of their offices shall constitute the Local Union board [sic] of Trustees. Two of these shall be the President and the Secretary-Treasurer, and the Local Union Executive Board shall annually designate one of the other members of the Executive Board to be the third trustee. McCullen has failed to inform the Executive Board of this provision and no third trustee has been designated.
McCullen as a trustee has the Constitutional duty to ensure that all finances of the Local are managed in accordance with the constitution and laws of the International Union. He has not lived up to that duty. McCullen has failed to collect rent from one of the union's [sic] tenants for a full year. The Union is owed over $80,000.
McCullen has failed to collect all union dues owed to Local 1-S by Macy's. McCullen was made aware that the dues being collected from certain commission members was inaccurate due to Macy's inability to correct their system, and that the Union was owed thousands of dollars in back dues. McCullen has failed to retrieve this money.
. . .
McCullen despite a ruling by the RWDSU, excluded Executive Board Chairpeople from participating at the bargaining table. There was no representative from the Queen's division or the White Plains division as well as several divisions of Herald Square. In addition, several people at the bargaining table were neither Chairpeople of their divisions nor elected negotiators as required by the Constitution.
. . .
There were no controls in place as to who was voting. Retirees, who have no right to vote, voted. Non-members voted and members admitted to voting more than once. Therefore the vote taken should be declared invalid.
McCullen misrepresented the terms of the agreement. Members did not have all the facts. He selectively only mentioned the positive aspects of the agreement and did not go into the givebacks. Given the fact that the membership was misinformed about the details of the contract when they voted, the vote should be declared invalid.
(Petition, attached as Exh. C to Declaration of Gary A. Stahl dated July 20, 2001 ("Stahl Decl.")). Signed by hundreds of Union members, the petition was presented to the Union Board in August of 1999. According to the rules governing Executive Board meetings, it was not read aloud to the Board. (Def. Memo. at 4-5). The Board considered the petition at its next meeting on September 29, 1999, but decided not to pursue any of the issues raised. This decision was appealed by Ms. Rogers to the RWDSU, which instructed the Board to review the petition again. (Def. 56.1 Statement, ¶¶ 82, 88; Def. Memo. at 6). On January 12, 2000, the Board reconsidered the petition and again rejected it. (Board Minutes attached as Exh. J to Declaration of Kenneth Bordieri dated July 18, 2001 ("Bordieri Decl."), at 4-5). After another appeal to the RWDSU by Ms. Rogers, the Board was instructed to form a trial committee to determine the charges set forth in the petition. The instant lawsuit was filed before that took place. (Def. Memo. at 7).
The plaintiff disputes the fact that the petition was accompanied by several hundred Union members' signatures because the list of signatures was not attached to the petition when presented to the Board. (Response of James Dunlop-McCullen to Defendants' Declarations ("Pl. Resp."), at 2).
B. Mr. Bordieri's Statements
The plaintiff accuses defendant Bordieri of making four defamatory statements against him. The first concerns a letter Mr. Bordieri sent to Mr. Dunlop-McCullen and John McGinnis, the Secretary-Treasurer of the Union, on March 15, 2000, complaining about his lack of access to examine the Union's financial records. (Pl. Amend. Comp. at 7).
The second and third allegedly defamatory statements occurred on September 29, 1999, at a Board meeting where Mr. Bordieri purportedly accused the plaintiff of: (1) "violating federal law, the constitutions of the UFCW, RWDSU and Local 1-S;" and (2) "orchestrating an elaborate conspiracy to commit and cover-up his wrongdoing." (Pl. Amend. Comp. at 7). Mr. Bordieri denies ever having made the statements. (Bordieri Decl., ¶¶ 18, 21).
The last allegedly defamatory statement made by Mr. Bordieri concerned Mr. Dunlop-McCullen's use of the Union's computers and other office equipment in his bid for Union presidency. Specifically, the plaintiff claims Mr. Bordieri accused him of "us[ing] the union computer and office equipment to produce fliers and other information for his election campaign." (Pl. Amend. Comp. at 8).
Mr. Bordieri states that at the September 29, 1999 Board meeting, he presented a copy of a letter from a former Union employee, Andy Smith. The letter detailed numerous improper campaign activities on the part of the plaintiff. (Bordieri Decl., ¶ 24). Mr. Bordieri admits that he "made use" of the letter "to bring Mr. Smith's charges . . . to the attention of the Executive Board." (Bordieri Decl., ¶ 25).
C. Mr. Grace's Statements
The plaintiff accuses defendant Grace of making sixteen defamatory statements against him at a Board meeting in the summer or fall of 1999. Below is a list of the statements as they appear in the plaintiff's Amended Complaint:
A. ". . . James Dunlop-McCullen violated Local, RWDSU and UFCW Constitutions" Grace falsely accused Dunlop-McCullen of:
B. ". . . Maladministration and misappropriation of union funds"
C. ". . . Making $8,550 in unauthorized expenses"
D. ". . . Hiring and paying Louis Mikolaidis for work performed beyond the scope of his engagement . . ."
E. ". . . Union paying $872 for the repair of damage to Dunlop-McCullen's car"
F. ". . . Using union's American Express for personal use"
G. ". . . Failing to provide an accurate and detailed financial report to the Executive Board . . ."
H. ". . . Manipulating expenses to give a false impression about the state of the Union"
I. ". . . misappropriated Union funds"
J. ". . . Hired staff without approval of Executive Board"
K. ". . . Wasted union funds by having two people to perform the same duty . . ."
L. ". . . improperly used his office to intimidate and threat[en]ed a union member who was exercising her freedom of speech . . ."
M. ". . . through recent negotiations, Dunlop-McCullen reduced the standard of living of union members"
N. ". . . intentionally did not allow members to read and understand the contract before they were asked to ratify it . . ."
O. ". . . only outlined the good points of the contract and not the `give-backs'"
P. ". . . through his mistruths and misrepresentations, caused the members to ratify the contract without a full understanding"
(Pl. Amend. Comp. at 9-10).
D. Conspiracy and Collusion
Mr. Dunlop-McCullen's final claim is that defendants Rogers, Bordieri, and Chencinski conspired to make the statements in the petition. The three defendants dispute this allegation.
Background for Counterclaims
On August 18, 1999, after the petition had begun circulating among Union members, the plaintiff issued a "Notice of Intent to Sue" on Local 1-S letterhead. (Def. 56.1 Statement, ¶ 95). In it, he stated that, "I, James Dunlop-McCullen, President of RWDSU-Local 1-S, will file a formal lawsuit for libel/slander" and that "anyone's name appearing [on the petition] . . . as of August 27, 1999 . . . will be subject to be named as defendants." (Notice of Intent to Sue attached as Exh. G to Stahl Decl.). The notice was sent to bulletin boards, cafeterias, and lockers rooms of all four Macy's stores and personally distributed to Union members by the plaintiff himself. (Def. 56.1 Statement, ¶¶ 98-99).
Also on August 18, 1999, Mr. Dunlop-McCullen issued a memorandum on Union letterhead entitled "Facts About Some of the Promoters of the Phoney Petition." (Def. 56.1 Statement, ¶ 108; Stahl Decl., ¶ 12 Exh. J). The memorandum, signed by Mr. Dunlop-McCullen as president of Local 1-S, contained a number of allegations against defendant Gail Rogers as well as other petition backers. (Stahl Decl., Exh. J).
About the same time, the plaintiff sent out another memo in response to the petition similarly entitled, "Facts About the Backers of the Phoney Petition." (Def. 56.1 Statement, ¶ 102; Stahl Decl., ¶ 10 Exh. 4). This document, again signed by the plaintiff in his presidential capacity, was also distributed to the four Macy's stores. (Stahl Decl., Exh. D at 183-84). It accused the petition backers of misconduct, stated that their activity violated federal law, and warned Union members to remove their names from the petition before it was too late. (Stahl Decl., Exh. H).
On August 27, 1999, again in response to the petition, Mr. Dunlop-McCullen wrote another memorandum to Union members called, "Things That You're Not Being Told." (Stahl Decl., ¶ 11 Exh. I). Mr. Dunlop-McCullen used Union office equipment to prepare the memorandum and then distributed it to all four Macy's locations. (Def. 56.1 Statement, ¶¶ 104-106). The memorandum, signed by Mr. Dunlop-McCullen as President of Local 1-S, contained a number of allegations against defendant Bordieri, including the allegation that he committed a felony. (Stahl Decl., Exh. I).
As a result of these actions by the plaintiff, Linda Cooper, a Union member, filed unfair labor practice charges, naming the plaintiff as the respondent. The charge was later amended by the National Labor Relations Board ("NLRB") to name the Union as the respondent. (Declaration of Linda Cooper dated July 18, 2001 ("Cooper Decl."), ¶¶ 13-14 Exhs. E, F). The parties differ on what eventually happened to these charges. According to the plaintiff, "The matter of Linda Cooper vs. Local 1-S was settled without anyone agreeing to any violations, to the best of my knowledge." (Answer to Defendants' Counterclaims ("Pl. Ans."), at 6). According to the defendants, the NLRB issued a complaint against the Union, alleging that the plaintiff's threatened lawsuit against the petition signers did "not have a reasonable basis in fact or law" and that the Union, through the plaintiff's actions, was violating rights of Union members guaranteed by 29 U.S.C. § 158(b)(1)(A). (Amended Answer and Counterclaims ("Def. Amend. Ans."), ¶ 53).
The NLRB set a hearing date, but before it occurred the Union and Ms. Cooper agreed to settle. The proposed settlement agreement required the Union to post signs saying that it would not "interfere with a member's right to engage in protected concerted activity by threatening to file a lawsuit that lacks a reasonable basis in fact or law." On March 29, 2000, before the NLRB Regional Director had signed the settlement agreement, the plaintiff filed the instant lawsuit against the defendants, purportedly acting in his individual capacity. The settlement agreement was then never signed by the Regional Director. (Def. Amend. Ans. ¶¶ 54-56). Legal Framework
A. Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)).
Where a litigant is pro se, his pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's "`bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Gittens v. Garlocks Sealing Technologies, 19 F. Supp.2d 104, 110 (W.D.N Y 1998).
B. Defamation
In order to prevail on a defamation claim under New York law, the following elements must be proven: (1) a false and defamatory statement of and concerning the plaintiff; (2) publication by the defendant of such a statement to a third party; (3) fault on the part of the defendant; and (4) injury to the plaintiff. See, e.g., Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993); Idema v. Wager, 120 F. Supp.2d 361, 365 (S.D.N.Y. 2000). If a plaintiff in a defamation suit is a public officer or public figure, the plaintiff must show actual malice on the part of the publisher. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967) (public figure); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (public official); see also Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 176 (2d Cir. 2000).
Proving actual malice is a heavy burden. Under the New York Times standard, "actual malice . . . is not satisfied merely through a showing of ill will or `malice' in the ordinary sense of the term." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666 (1989) (citations and footnote omitted). Rather, the plaintiff must establish, by clear and convincing evidence, that the defendants published the statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 280; see also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511 n. 30 (1984). "[R]eckless disregard of the truth [means] subjective awareness of probable falsity: `There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 n. 6 (1974) (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). Compare Tucker v. Fischbein, 237 F.3d 275, 286 (3d Cir.) (actual malice not established where defendant engaged in poor journalistic practices, had a preconceived story-line, and failed to conduct thorough investigation, but did not entertain serious doubts about truth of statement), cert. denied, U.S., 122 S. Ct. 42 (2001), with Celle, 209 F.3d at 186 (actual malice established by evidence that editor entertained serious doubts about truth of headline stating that judge had found negligence, editor's own admissions that he knew no decision had been reached at the time he wrote article, and evidence of ill will and personal animosity between parties).
Whether a plaintiff is a public or private figure is a question of law to be determined by the court. Celle, 209 F.3d at 176. This determination can be made "by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Gertz, 418 U.S. at 352. Public figures generally "assume roles of especial prominence in the affairs of society" and "thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Id. at 345; see also Celle, 209 F.3d at 176 (public figures seek and attain influence in "matters of social concern"). They also "invite attention and comment" and, unlike private individuals, have "relinquished . . . part of [their] interest in the protection of [their] own good name." Gertz, 418 U.S. at 352. In addition, "[p]ublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements [than] private individuals normally enjoy." Id. at 344 (footnote omitted).
Courts have generally held union members to be public figures for purposes of union business where their position is one of prominence or where their activities place them in a controversy that invites scrutiny. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980) (secretary-treasurer of Teamsters, a "high-ranking official of a union of tremendous importance to our economy," was public figure); Argentine v. United Steel Workers Association, 23 F. Supp.2d 808, 820 (S.D. Ohio 1998) (chief union officers of large local union which had recently received extended media coverage were public figures); Henry v. National Association of Air Traffic Specialists, Inc., 836 F. Supp. 1204, 1206 n. 3, 1211 n. 6 (D. Md. 1993) (plaintiffs qualified as public figures because of prominence as elected and appointed leaders of 1700-member union), aff'd, 34 F.3d 1066 (4th Cir. 1994); see also Jesinger v. Nevada Federal Credit Union, No. Civ. S-90-195, 1992 WL 672236, at *2 (D. Nev. March 27, 1992) (elected directors of Nevada Federal Credit Union were public figures), aff'd, 24 F.3d 1127 (9th Cir. 1994).
Discussion — Defamation Claims
In this case, Mr. Dunlop-McCullen qualifies as a public figure. He is the elected president of a labor union with 4,000 members. (Def. 56.1 Statement, ¶¶ 10, 15). He has "assumed a role of especial prominence" in the affairs of the Union by campaigning for elective office several times, participating in several of its committees, and controlling and appearing regularly in the Union's newspaper. Gertz, 418 U.S. at 345. (Def. 56.1 Statement, ¶¶ 29-35, 39, 47-51).
In his capacity as Union president, he also engages in activities which bring him notoriety in the community at large. He meets regularly with local, state, and federal officials to exert the Union's influence. He networks and interacts with other labor officials in New York and he serves on the advisory board of the New York City Central Labor Council which coordinates the activities of 400 labor unions in the New York metropolitan area. (Def. 56.1 Statement, ¶¶ 37, 54-56).
Mr. Dunlop-McCullen also acknowledges that as Union president he is able to address matters of "social concern," another common characteristic of a public figure. Celle, 209 F.3d at 176. (Def. 56.1 Statement, ¶¶ 28, 39-42). Furthermore, unlike private individuals, the plaintiff has access to channels of effective communication. He is the editor-in-chief of the Union newspaper, and as such has the final authority with respect to its content. Each newspaper contains articles written by him and, at his direction, also contains at least one photo of him. The plaintiff also regularly issues bulletins and other communications to his Union's membership to appraise them of Union business. (Def. 56.1 Statement, ¶¶ 43, 46-52).
Finally, the plaintiff does not dispute that he is a public figure. For these reasons, Mr. Dunlop-McCullen is a public figure and therefore required to show actual malice to recover for defamation.
A. The Petition
Mr. Dunlop-McCullen's first claim is that defendants Gail Rogers and Ronald Chencinski defamed him by making and publishing seventeen "false and libelous statements" contained in the petition. (Pl. Amend. Comp. at 4-6).
In order to prevail on this claim as a public figure the plaintiff must show that the statements in the petition were false and that the defendants knew they were false or uttered them with reckless disregard for their falsity.
1. Failure to call regular meetings
The first allegedly libelous statement in the petition is that the plaintiff failed to call monthly or quarterly meetings of the membership in violation of the UFCW Constitution. To establish the truth of the statement, the defendants have proffered evidence that the Union's newspapers, which contained official notices of Union committee meetings and Board meetings, contained no notice of any general membership meetings during the first five months of 1999. (Declaration of J. Andrew Smith dated June 28, 2001 ("Smith Decl."), Exhs. C, D, E, and F, last page of each). They also offer the testimony of two Board members who confirm that the Union did not hold quarterly meetings in 1999. (Bordieri Decl., ¶ 42; Declaration of Gwendolyn Parham dated June 29, 2001 ("Parham Decl."), ¶ 9).
In response, Mr. Dunlop-McCullen argues that in 1998, "there was no constitutional requirement to hold membership meetings monthly." (Declaration of James Dunlop-McCullen in Opposition to Defendants [sic] Motion for Summary Judgment dated October 19, 2001 ("Dunlop-McCullen Decl."), at 14). However, he agrees with the defendants' statement that no quarterly meetings of its general membership were held in 1999. (Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶ 126). "[F]or a publication to be libelous in any sense, it must be false." Hogan v. New York Times Co., 313 F.2d 354, 355 n. 1 (2d Cir. 1963) (citations omitted). Since the plaintiff admits that there was a factual basis for the defendants' statement that he did not call monthly or quarterly meetings, this claim fails.
2. Failure to obtain Board approval for expenditures
The next six allegedly libelous statements in the petition concern expenditures made by Mr. Dunlop-McCullen purportedly without Board approval. Each of these claims also fails because Mr. Dunlop-McCullen has either failed to contest the truthfulness of the statement or failed to show that it was made with actual malice.
The first expenditure-related statement is, "McCullen has failed to get the approval of the Executive Board for many of his disbursements of funds." (Stahl Decl., Exh. C). To prove that there is a factual basis to the statement, the defendants offer the declaration of Mr. McGinnis, the Secretary-Treasurer of the Union, who testified that prior to paying Union bills, he never checked the minutes from the Board meetings to find out whether a certain expense had been authorized for payment and he never saw the plaintiff check the Board minutes to determine whether a particular expense had been approved. (Def. 56.1 Statement, ¶¶ 129-31; Stahl Decl., Exh. E at 13). The plaintiff admits that Mr. McGinnis' testimony is true. (Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶¶ 129-31).
The defendants also offer evidence, and the plaintiff concurs, that the Union's Executive Board has had sharp disagreements over the Union President's authority to make expenditures and the necessity for the Board's approval of expenditures. Specifically, they note that the plaintiff has taken the position that he may simply report expenditures above $500 to the Board while some Board members have taken the position that the Board must specifically authorize or ratify the expenditures. (Bordieri Decl., ¶¶ 13, 45, 48; Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶ 136; Bordieri Decl., Exh. K at 1). The defendants further claim that these disagreements are largely the result of the Union proceeding under different constitutions (Bordieri Decl., ¶ 13), and note that the UFCW Constitution provides: "The President shall disburse the Local Union's funds and, except for disbursements required to be made from the funds of the Local Union . . ., disbursements shall be authorized or ratified by the Local Union Executive Board." (UFCW Constitution, attached as Exh. C to Bordieri Decl., at 25).
In response, the plaintiff argues that prior to January 1, 1999, the Union's Constitution only required that he report expenditures over $500 to the Board and after 1999, the UFCW Constitution only required that he obtain approval or ratification for expenditures. He states that he fulfilled this obligation by having monthly financial statements prepared. (Dunlop-McCullen Decl. at 15).
Given the ongoing dispute within the Board about which constitution applies and the plaintiff's contention that he is not required to get Board approval before expenditures are made, he has failed to prove that the defendants' statement is technically false. Moreover, even if the statement is false, Mr. Dunlop-McCullen has failed to allege that the defendants knew it was false or made the statement with a reckless disregard for its falsity.
Mr. Dunlop-McCullen next argues that the statement in the petition which accused him of purchasing tickets to a fundraiser without Board approval is libelous. The statement also accused the plaintiff of allowing non-Union members to use the tickets. The defendants offer the testimony of Gwendolyn Parham, a vice president of the Union and an elected member of the Board, to prove the truth of the statement. Ms. Parham testified that in 1999, the plaintiff instructed her to buy seven tickets to a fundraiser. She then issued a Union check for over $1,000 for the tickets, an amount which was never authorized by the Board. She also stated that at the fundraiser, she saw the daughter of Theodore Been, another Board member, who was not a Union member. (Parham Decl., ¶ 10).
In response, the plaintiff states that he did not authorize the use of the tickets for non-Union members and that the Union was reimbursed for the ticket for Mr. Been's daughter. (Plaintiff's Rule 56.1 Statement of Disputed Facts ("Pl. 56.1 Statement") at 2-3). Simply contradicting the defendants' evidence, however, is insufficient to show defamation where actual malice is required. "[T]here is a significant difference between proof of actual malice and mere proof of falsity." Bose, 466 U.S. at 511 (footnote omitted).
The next allegedly defamatory statement accuses Mr. Dunlop-McCullen of purchasing computer equipment without the Board's approval. The defendants offer the testimony of Board member Parham to show there is a factual basis for the statement. She testified that she was with Mr. Dunlop-McCullen in June of 1998 when he purchased computers for the Union's office at a cost of approximately $9,000. She stated that the Board had not approved the purchase. (Parham Decl., ¶ 11).
Mr. Dunlop-McCullen responds that although he did make the computer purchase, he was not president at the time. He states that as the vice president, he received authority from the then-president, Vincent Giananti, to make the purchase. (Dunlop-McCullen Decl. at 15). Even if the plaintiff's contention that he was not yet president is correct, the statement is still technically not false in that he bought the computers without the authority of the Board. In addition, merely contradicting the defendants' statement is insufficient to show actual malice. See Bose, 466 U.S. at 511.
The next statement is that the plaintiff sent staff to a training session in Maryland without Board approval. The defendants first point out that the plaintiff admits that he did not have Board authority prior to sending the staff to Maryland. (Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶¶ 132-133). They also attach Board minutes which show that the trip was not disclosed until after the fact. (Bordieri Decl., Exh. D at 1)
The plaintiff argues in response that under the Union's Constitution, he "has full charge of the union office." He further contends that he "properly reported" the trip to the Board. (Dunlop-McCullen Decl. at 15a). Again, this dispute is premised on the fact that the plaintiff and the defendants rely on two different constitutions. Mr. Dunlop-McCullen has merely inferred that he does not have to get Board approval. This does not make the statement that he failed to get Board approval false. Furthermore, he has alleged no facts showing that the defendants had knowledge of the falsity or reckless disregard for whether it was false or not.
The next allegedly libelous statement accuses Mr. Dunlop-McCullen of "leasing cellular phones without the Board's approval." (Stahl Decl., Exh. C). Here, the defendants offer proof through the testimony of four Board members that Mr. Dunlop-McCullen and other Union officers are provided cell phones at Union expense. According to these Board members, the Board has never authorized or ratified either the leasing of the phones or the ongoing expense of their regular use. (Bordieri Decl., ¶ 54; Declaration of Ronald Chencinski dated July 19, 2001 ("Chencinski Decl."), ¶ 8; Parham Decl., ¶ 13; Declaration of Gail Rogers dated July 18, 2001 ("Rogers Decl."), ¶ 16).
The plaintiff responds by noting that he was not President when the phones were initially leased. He further states that they "did not total $500 or more." (Dunlop-McCullen Decl. at 15a). Again, as with the other statements, Mr. Dunlop-McCullen has not contested the veracity of the statement — indeed, he appears to acknowledge it as truthful — but has simply argued that the underlying assumption that he needed Board approval was not true.
The final allegedly defamatory statement related to expenditures is, "McCullen authorized lunch for the office staff and his campaign workers, a total of 25 people, paid at Union expense from petty cash." (Stahl Decl., Exh. C). Here, the defendants offer the statement of Board member Parham who testified that the plaintiff instructed her to use $90.00 from the office petty cash to pay for lunch for a group of staff members after Mr. Dunlop-McCullen won the election for President. (Parham Decl., ¶ 14). No Board approval was sought or received.
In response, the plaintiff denies that this event ever occurred. He argues that it was a "figment of Rogers' and Parham's imagination." (Dunlop-McCullen Decl. at 15a). He further notes that Ms. Parham's statement is false because she has failed to provide a copy of a petty cash voucher with the plaintiff's signature on it. According to the plaintiff, Ms. Parham's "false statements are nothing more than self-serving — and an attempt to cover-up her own wrong doings." (Pl. 56.1 Statement at 5).
Here, although Mr. Dunlop-McCullen contests the truth of the statement, he alleges no facts to suggest that the defendants made the statement while knowing it was false. The plaintiff's argument that Ms. Parham's statements are deceptive attempts to deflect attention from her own "wrong doings," fails to show actual malice on the part of the defendants since Ms. Parham is not a defendant in this case and Mr. Dunlop-McCullen has offered no basis to attribute her motives to the defendants. Accordingly, the claim fails.
3. Retaining attorney without Board approval
The next allegedly libelous statement is that Mr. Dunlop-McCullen hired an attorney, Louis Nikolaidis, for one matter with Board approval but then proceeded to retain him at Union expense for other matters. To prove the truth of the statement, defendants offer a letter written by the plaintiff to the Board requesting approval to employ Ms. Nikolaidis for a legal matter involving Mr. Pascarella, the former president. (Parham Decl., Exh. B). The defendants further offer the testimony of four Board members who stated that Mr. Nikolaidis attended a hearing held by the RWDSU concerning charges that Mr. Dunlop-McCullen violated the Union's Constitution by failing to name certain Union members to a committee and that Mr. Nikolaidis also attended the site where voting took place for the Union president the year the plaintiff was elected. The Union has been billed for these and other appearances unrelated to the Pascarella matter. (Bordieri Decl., ¶¶ 55-57; Chencinski Decl., ¶ 8; Parham Decl., ¶¶ 15-16 Exh. C; Rogers Decl., ¶¶ 17-21).
The plaintiff responds by stating that the Union Constitution gives the president the authority to handle all legal matters of the Union. He claims that this authority includes the hiring of attorneys. (Dunlop-McCullen Decl. at 15b). Even though the plaintiff argues that he had authority to hire Mr. Nikolaidis without Board approval, he has failed to prove that the defendants' statement that the retention of counsel was not approved by the Board was false. And again, even if the statement were false, Mr. Dunlop-McCullen has failed to allege actual malice of any kind. Accordingly, this claim fails.
4. Requesting staff raises in violation of the RWDSU Constitution
The next allegedly defamatory statement in the petition is that Mr. Dunlop-McCullen repeatedly asked the Board to approve raises for his new officers in direct violation of the RWDSU Constitution. To prove the truth of the statement, the defendants offer testimony which shows that at three Board meetings, the subject of officers' salaries was raised. (Bordieri Decl., Exhs. K at 3, N at 3, O at 1-3). They also point to Article 10, Section 18 of the RWDSU Constitution which provides among other things that "[t]he salaries of elected officers of the local union shall be governed by the constitution and bylaws of the local union. . . Thereafter, such salaries shall not be increased during the terms of their office." (Bordieri Decl., Exh. B at 48-49).
Mr. Dunlop-McCullen responds that he did not violate the RWDSU Constitution since the Union's Constitution provides that the Board shall determine the salaries of the officers. (Dunlop-McCullen Decl. at 15b). This dispute is yet another example of the ongoing disagreement between the parties over which constitution applies. As such, the plaintiff has failed to show that the statement was false or that the defendants knew the statement was false or made it with reckless disregard of its truth.
5. Establishing system of compensatory time without Board approval
The next statement alleged by the plaintiff to be defamatory is that he "established a system of `Comp time' at the Union Office without the approval of the Executive Board." (Stahl Decl., Exh. C at 2). The defendants offer a memorandum dated April 14, 1999, from Mr. Dunlop-McCullen which requires staff to take "comp time" during the same week in which they work overtime. Parham Decl., Exh. E). They also offer the statements of two Board members who assert that prior to Mr. Dunlop-McCullen's presidency no system of comp time existed. (Bordieri Decl., ¶ 64; Parham Decl., ¶ 18). And finally, they offer the deposition of Mr. McGinnis, who stated that all individuals who worked in the Union's office were given the option of comp time until the Board abolished the practice in 2000. (Stahl Decl., Exh. E at 88-91).
Mr. Dunlop-McCullen admits that prior to his presidency, the Union utilized a time and one-half pay system for overtime hours worked, but that during his presidency, staff who worked overtime at the Union were instead entitled to take comp time. He further acknowledges sending the April 14, 1999 letter. (Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶¶ 146, 148-149). In his declaration, however, he states that the comp time policy was established by the former president, Mr. Giananti, and not himself. (Dunlop-McCullen Decl. at 15b-15c). In light of the letter as well as the plaintiff's contradictory statements, there appears to be some basis for the defendants' belief that the plaintiff established the comp time policy. Even if the former president did initiate the policy, the charge of defamation fails since the plaintiff has not alleged any facts indicating that the defendants acted with malice.
6. Failure to provide Board with monthly statements
The plaintiff next argues that the following statements are defamatory: "McCullen failed to provide monthly statements to the Executive Board for January through April of 1999. In fact, McCullen attempted to deceive the Executive Board by stating that the UFCW only required quarterly reports." (Stahl Decl., Exh. C at 2). To establish the truth of these statements, the defendants offer the testimony of two Board members who stated that the Board was not provided with financial statements for the first four months of 1999. (Bordieri Decl., ¶ 67; Rogers Decl., ¶ 23). They also attach the minutes from a Board meeting where the plaintiff states that the Board will only be receiving quarterly statements. (Bordieri Decl., Exh. P at 6).
In response, Mr. Dunlop-McCullen admits that no reports were given to the Board for the first four months of 1999, but he further claims that financial reports were provided for January through December of 1998. (Pl. Br. at 7, admitting to Def. 56.1 Statement, ¶ 151; Dunlop-McCullen Decl., at 15c). He also states that he did not attempt to deceive the Board. (Dunlop-McCullen Decl. at 15c).
The plaintiff has failed to prove that the first statement is defamatory since he does not contest its truthfulness. As to the second part, the plaintiff argues that he never attempted to deceive the Board, but, here again, he suggests no malice on the part of the defendants.
7. Failure to ensure the appointment of a new union trustee
The next allegedly libelous statement is that Mr. Dunlop-McCullen failed to inform the Board of its duty to designate a third member of the Local Union Board of Trustees. The defendants offer the testimony of Board member Bordieri who was elected to the position of trustee but only after it sat vacant from January 1999 until September 1999. (Bordieri Decl., ¶¶ 68-70). Mr. Bordieri argues that the Union's Constitution requires the president to "enforce strict observance" of the Constitution and other rules, and that Article 36(A) of the UFCW Constitution requires the Union to have three Trustees. The Constitution also gives the president power to fill temporary vacancies on the Board. (Bordieri Decl., ¶ 69 Exh. C at 28).
The plaintiff admits that the trustee position was vacant from January 1999 through September 1999. However, he argues that it is the Board's responsibility to appoint the trustees and not his. Even if it was the Board's responsibility to appoint the trustees, the claim fails because the plaintiff has alleged no facts showing actual malice.
8. Failure to ensure finances are managed in accordance with International Union Constitution
The next allegedly defamatory statement in the petition is that Mr. Dunlop-McCullen has failed in his duty to ensure that all finances are managed in accordance with the Constitution and laws of the international union. To establish the truth of this statement, the defendants point to the evidence proffered to provide a factual basis for the statements in sections two and four above.
The plaintiff contests the truth of this statement by simply denying that he mismanaged the finances. (Dunlop-McCullen Decl. at 16). Again, merely contradicting the statement is insufficient to show actual malice.
9. Failure to collect dues and rent
The plaintiff next argues that the following statements in the petition are libelous: "McCullen has failed to collect rent from one of the union's tenant[s] for a full year" and "McCullen has failed to collect all union dues owed to Local 1-S by Macy's." (Stahl Decl., Exh. C). To prove a factual basis for the first statement, the defendants offer the testimony of Mr. McGinnis, who stated that Jason's Stationery, a Union tenant, was not current on its rent throughout 1999 and 2000. (Stahl Decl., Exh. E at 123). Board member Bordieri confirms this. (Bordieri Decl., ¶ 72). The defendants also offer Board minutes from a November 30, 1999 meeting which indicates that Jason's Stationery was $112,000 in arrears on its rent. (Bordieri Decl., Exh. Q at 1).
To prove the second statement, Board member Bordieri stated that the Union failed to collect its dues from Macy's until 2001. (Bordieri Decl., ¶ 74). Mr. McGinnis' statement also indicates his belief that the Union was owed back dues by Macy's in 1999. (Stahl Decl, Exh. E at 125-26).
In response, Mr. Dunlop-McCullen admits that Jason's Stationery was in arrears throughout 1999 and 2000. (Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶¶ 157-158). He argues, however, that he took timely and appropriate actions to deal with the situation and that it has since been resolved. (Dunlop-McCullen Decl. at 17). It is unclear if the plaintiff addressed the problem, as he claims, before or after the petition started circulating, but in any event, this claim must fail because he proffers no evidence to show actual malice.
The statement about back dues from Macy's also fails for the same reasons. Mr. Dunlop-McCullen responds by stating that he has filed unfair labor practice charges and several grievances against Macy's East about the money owed. (Dunlop-McCullen Decl. at 17). However, he attaches no evidence to support this claim and more importantly, he fails to prove that the statement about Macy's is false or that the defendants had knowledge of the falsity of their statement.
10. Failure to include Board members in collective bargaining
Next, Mr. Dunlop-McCullen argues that the statement accusing him of excluding certain Board members from collective bargaining despite a ruling by the RWDSU is defamatory. The statement also alleges that there were no representatives from the Queens and White Plains Divisions as well as several divisions in Herald Square. The statement further contends that several people participated who had no right to be present according to the Union's Constitution.
To prove the truth of the statement, the defendants offer the testimony of Board member Chencinski, who stated that since 1981 when he joined the Union, each division chairperson was automatically appointed to the collective bargaining committee. During negotiations for the contract due to expire in 1999, however, the plaintiff refused to name Mr. Chencinski and two other division chairs to the committee because he considered them "weak negotiators." (Chencinski Decl., ¶ 12-13). After Mr. Chencinski complained to the RWDSU, it ordered Mr. Dunlop-McCullen to place them on the bargaining committee. Although the plaintiff complied by placing them on the "overall committee," many committee members were still prevented from participating in actual negotiations, according to Mr. Chencinski, because the plaintiff divided up the group into subcommittees. In addition, although the overall committee may have had representatives from Queens, White Plains, and Herald Square stores, several subcommittees did not. (Chencinski Decl., ¶¶ 14-16). The defendants also offer the testimony of Mr. McGinnis, who stated that the bargaining committee was composed mostly of division chairpersons elected from the Union's membership. Others were appointed by the plaintiff. Following a complaint to the RWDSU, Mr. Dunlop-McCullen was instructed to name additional people to the committee. (Stahl Decl., Exh. E at 110-11). Board member Bordieri also confirms this account and further states that the bargaining committee included several people who were not Union members and should not have participated. (Bordieri Decl., ¶¶ 75-77).
The plaintiff admits that after the committee had been selected, he was instructed to name additional people to the committee, including the division chairs and Board members. (Pl. Brief at 7, admitting to Def. 56.1 Statement, ¶¶ 160-161, 164; Stahl Decl., Exh. D at 225-27). He argues, however, that there were representatives from both the Queens and the White Plains stores on the bargaining committee. He further argues that he was not constitutionally required to appoint Board chairs to the argaining committee. (Dunlop-McCullen Decl. at 18).
Here, although the plaintiff contests the truthfulness of the statements and reiterates his belief that his actions were in accordance with the constitution, he fails to allege any facts that show that the defendants made their statements with actual malice. Accordingly, the claim must fail.
11. Voting abnormalities during the election
The next allegedly libelous statement is that "[t]here were no controls in place as to who was voting. . . . Therefore the vote [electing Mr. Dunlop-McCullen as president] should be declared invalid." (Stahl Decl., Exh. C at 2).
On its face, this claim does not constitute libel in any sense. Since the statement in no way implicates Mr. Dunlop-McCullen as the person responsible for the voting abnormalities, it is not a "defamatory statement of and concerning the plaintiff." See Idema, 120 F. Supp. 2d at 365. Rather, the statement depicts Mr. Dunlop-McCullen as an innocent beneficiary of the election. Thus, the claim fails.
12. Failure to fairly represent the terms of the agreement
The final statement in the petition that Mr. Dunlop-McCullen alleges to be defamatory is that he misrepresented the terms of the collective bargaining agreement with Macy's when presenting it to Union members. The defendants offer the testimony of Board members Chencinski and Parham, who both stated that they heard Mr. Dunlop-McCullen give speeches regarding the new agreement where he described the benefits of the proposed agreement but failed to describe many of the "give-backs" that it contained. (Chencinski Decl., ¶¶ 24-25; Parham Decl., ¶ 21). The defendants also attach an issue of the Union newspaper which contains an article by Mr. Dunlop-McCullen detailing key provisions of the agreement. The article does not mention any "give-backs" to Macy's. (Smith Decl., Exh. D at 6).
The plaintiff responds by stating that the "The Memorandum of Agreement" was read in its entirety at a membership meeting at each store location and that copies were made available for review. (Dunlop-McCullen Decl. at 19). Again, a claim of defamation must fail since nothing in the defendants' statement indicates actual malice.
All of Mr. Dunlop-McCullen's claims connected to the petition fail since most of the statements have a solid factual basis that many times is uncontested by the plaintiff and because the plaintiff has failed to show actual malice on the part of the defendants for any of the statements. Therefore, summary judgment should be granted on all defamation claims against Ms. Rogers and Mr. Chencinski as well as the conspiracy and collusion claims against Ms. Rogers, Mr. Bordieri, and Mr. Chencinski.
In his papers, Mr. Dunlop-McCullen attempts to show actual malice generally on the part of the defendants by describing past disputes between the parties and grudges held by the defendants. (Pl. Brief at 4-6). These disputes merely illustrate the contentious relationship between the parties, and "[s]tanding alone . . . evidence of ill will is not sufficient to establish actual malice." Celle, 209 F.3d at 183 (citations omitted).
B. Statements by Mr. Bordieri
Mr. Dunlop-McCullen next argues that he was defamed by four different statements made and published by Board member Bordieri.
1. Letter dated March 15, 2000
The plaintiff first claims that a letter sent by Mr. Bordieri to the plaintiff and Mr. McGinnis was defamatory. On March 15, 2000, Mr. Bordieri wrote,
As a Trustee of Local 1-S I have a responsibility to examine the Union's books. To date my efforts to gain free access to all the financial records of the Local have been met with resistance. Isolating me in a room far removed from the records I'm held responsible to monitor is not free access by anyone's definition. Besides, if there is nothing to hide why not allow me to do what the UFCW and Local 1-S constitutions mandate I do and what the Executive Board elected me to do.
I've made many calls to set up an appointment, and my calls have gone unanswered.
(Letter of Kenneth Bordieri dated March 15, 2000, attached to Pl. Amend. Comp.). In response to the plaintiff's claim of defamation, the defendants offer Mr. Bordieri's testimony that he tried repeatedly and unsuccessfully to see the financial records. He states that he was under an obligation as a trustee to review the records pursuant to a provision in the Union Constitution which states, "The Trustees shall examine the records of the financial secretary and the expense accounts of all committees, subcommittees, and officers." (Bordieri Decl., ¶¶ 27-29). The defendants also produce printouts of the notes from Mr. Bordieri's palm pilot, confirming his attempts over months to obtain access to the records. (Bordieri's Decl., Exh. G).
The plaintiff argues in response that Mr. Bordieri was "afforded every courtesy" to access the records and that Mr. Bordieri "knows that." He further states that Mr. Bordieri's letter "constituted harassment and obstructionism in retaliation for a political loss." (Response of James Dunlop-McCullen to Defendants' Declarations dated Oct. 19, 2001 ("Pl. Resp."), at 38).
The plaintiff fails to make a prima facie case for defamation. First, the defendants provide evidence that shows a clear factual basis behind the statement in the letter and the plaintiff has only responded with vague denials not supported by any evidence. Second, he fails to allege that Mr. Bordieri wrote the letter with actual malice. Merely alleging that Mr. Bordieri was upset for having failed in his bid for the presidency is insufficient. See Celle, 209 F.3d at 183.
2. Violating the law and conspiring to cover it up
Mr. Dunlop-McCullen next accuses Mr. Bordieri of publishing the following two statements to the Board on or about September 29, 1999, accusing Mr. Dunlop-McCullen of: (1) "violating federal law, the constitutions of the UFCW, RWDSU and Local 1-S;" and (2) "orchestrating an elaborate conspiracy to commit and cover-up his wrongdoing." (Pl. Amend. Comp. at 7).
Mr. Bordieri disputes that these statements were ever made. He attaches minutes from the September 29, 1999 Board meeting to prove his point. (Bordieri Decl., ¶ 21-22 Exh. D). Since the minutes do not contain these statements and the plaintiff provides no additional information about these statements at all, these claims fail. See Anderson, 477 U.S. at 249-50 (summary judgment motion should be granted where nonmovant's evidence is conclusory).
3. Improper use of Union's equipment
The final defamation claim against Mr. Bordieri concerns a former employee, Andy Smith. The plaintiff contends that the defendant published statements to the Board which accused him of using Union office equipment for his presidential election campaign. Mr. Bordieri concedes that he brought a letter to the attention of the Board from a former employee which accused the plaintiff of this misconduct. (Bordieri Decl., ¶ 24 Exh. E). To provide a factual basis for the statement, the defendants offer the testimony of Andy Smith, the former employee who wrote the letter. Mr. Smith set forth in some detail that while he worked for the plaintiff, he and other staff were heavily involved in election campaign activities. (Smith Decl., ¶¶ 9-11). During office hours and on Union office equipment, Mr. Smith formatted flyers and printed return address labels for campaign literature mailings. He also helped label and stamp envelops. (Smith Decl., ¶¶ 12-18). He was eventually fired by the plaintiff who accused him of "usurping his authority, operating outside [his] authority, collaborating with his political enemies, and leaking information from the computers." (Smith Decl., ¶ 23). Mr. Smith testified that he did not know why Mr. Dunlop-McCullen fired him. Soon after, he went to Mr. Bordieri, with whom he had had no prior contact, and told him about his and the plaintiff's involvement in campaign activities using Union resources. Mr. Bordieri advised Mr. Smith to put his allegations in writing to the Board. (Smith Decl., ¶¶ 23-24).
In response, the plaintiff denies that he used Union equipment or staff in his campaign for president. (Pl. Resp. at 15, 16, 37). He further states that he fired Mr. Smith because he was "using union equipment and time for his own personal business." He suggests that Mr. Smith made the false charges to get even with the plaintiff for terminating him. (Pl. Resp. at 17).
This claim of defamation should be dismissed against Mr. Bordieri. Simply alleging that Mr. Smith had bad feelings for Mr. Dunlop-McCullen does not establish that Mr. Bordieri brought the letter to the attention of the Board with actual malice. Mr. Dunlop-McCullen has not put forth any evidence, other than the existence of general animosity between the parties, that Mr. Bordieri had a "high degree of awareness of [its] probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74 (1964), or that he had "in fact entertained serious doubts as to [its] truth." St. Amant, 390 U.S. at 731. On the contrary, Mr. Bordieri has proffered affirmative evidence tending to show that the letter was presented in good faith and without actual malice.
C. Statements by Mr. Grace
The plaintiff next alleges that Pierre Grace defamed him when he read out a list of accusations at a Board meeting in the late summer or fall of 1999. (Pl. Amend. Comp. at 9). The statements attributed to Mr. Grace in the plaintiff's Amended Complaint are a series of phrases in quotation marks. In his deposition, however, Mr. Dunlop-McCullen admits that these statements were based, not on actual quotes, but on his and others' memories since he did not have any actual document from which Mr. Grace had read. (Stahl Decl., Exh. D at 247-48). Board minutes from the spring of 1999 refer to defendant Grace and state, "Pierre proceeded to read out ten accusations against Jim." (Bordieri Decl., Exh. K at 2). However, the minutes do not contain the specific charges (Bordieri Decl., Exh. K), and Mr. Dunlop-McCullen has offered no proof that Mr. Grace actually made the statements ascribed to him.
The plaintiff claims that another Board member, Theodore teen, taped the Board meeting where Mr. Grace read the statements. (Dunlop-McCullen Decl. at 26). However, he has failed to provide to the defendants either a valid transcript of the tape recording or Mr. Been's sworn statement. (Reply Declaration of Gary A. Stahl dated November 16, 2001, ¶ 5).
The defendants argue that the claim should fail because the plaintiff has not only referenced a time period different from the Board meeting minutes, but he has also failed to authenticate the statements in any way. (Def. Memo. at 20). Nevertheless, since the defendant is not prejudiced by the lack of authentication because the statements fail to meet the elements required for a defamation claim, I will proceed to analyze each statement.
Eight out of the sixteen allegedly defamatory statements can be rejected without further analysis because they closely correspond to statements that appeared in the petition. Thus, since the plaintiff has failed to present any evidence of actual malice for statements A, B, D, G, M, N, O, and P, or has admitted that the statements are in fact true, they cannot form the basis for a defamation claim. The remaining eight statements also fail for similar reasons.
1. Charging unauthorized expenses
Statement C accuses the plaintiff of charging the Union for unauthorized expenses in the amount of $8,550. The defendants offer the testimony of Board members Bordieri and Parham to show there is a factual basis for the statement. Both members testified hat this statement refers to the legal bills that Mr. Nikolaidis forwarded to the Union. In 1999, Ms. Parham filed charges against the plaintiff to the Board, accusing him of among other things, hiring Ms. Nikolaidis and being billed for unauthorized services amounting to $8,550. (Bordieri Decl., ¶¶ 85-87; Parham Decl., ¶¶ 15-17 Exhs. C, D at 4).
Mr. Dunlop-McCullen responds that he has the authority to handle all legal matters of the Union. (Pl. Resp. at 27-28). Since this response fails to allege that the defendants knew the statement was false or uttered with reckless disregard of its falsity, this defamation claim must fail.
2. Paying personal expenses out of Union funds
Statements E and F allege that the Union paid a $872.00 bill to repair Mr. Dunlop-McCullen's car and that the plaintiff used the Union's credit card for personal use. To provide a factual basis for the statements, the defendants offer the testimony of Board member Parham who stated that the plaintiff told her he had a car accident in 1999. She also attaches a bill from a Union-issued American Express card used by the plaintiff that shows a prior balance of $872.56. (Parham Decl., ¶ 22 Exh. G). The plaintiff responds by denying that he ever had the Union pay for the damage to his car. (Pl. Resp. at 29).
Although the defendants' attempt to show a factual basis exists for these statements is weak, the plaintiff still has failed to meet his burden of showing actual malice.
3. Inaccurate financial reporting to the Board
Statement H accuses the plaintiff of "[m]anipulating expenses to give a false impression about the state of the Union." (Pl. Amend. Comp. at 10). The defendants offer the testimony of Board member Bordieri who stated that as a result of a "large number of arbitrations and other legal matters" pending, the plaintiff advised the Board that the bills would be significant. However, no financial statements reflecting this were provided to the Board. According to Mr. Bordieri, this gave the impression that the Union had more funds than it actually did. (Bordieri Decl., ¶ 91). The plaintiff responds that "[d]ue to the lack of specificity . . . I am unable to respond thereto." (Pl. Resp. at 52). Again this response fails to allege falsity or that the defendants were aware of the falsity. Accordingly, this claim must be rejected.
4. Misappropriating and wasting Union funds
The next three statements, I, J and K, accuse the plaintiff of "misappropriat[ing] Union funds," "hir[ing] staff without approval of Executive Board," and "wast[ing] union funds by having two people to perform the same duty." (Pl. Amend. Comp. at 10). The defendants contend that these three statements refer to the hiring of employees at the Union's office and should be read together. (Def. Memo. at 22). Here, the defendants offer the testimony of Board members Bordieri and Chencinski who state that there was a significant increase in hiring of staff at the Union offices under the plaintiff's administration without the approval of the Board. The defendants allege that, as a result, staff members performed duties that overlapped. (Bordieri Decl., ¶¶ 92-96; Chencinski Decl., ¶ 34). They further testified that Ms. Parham, a vice president of the Union, has been forbidden from performing her job by the plaintiff for the past two years. This has required another person to perform these tasks instead, thus wasting Union funds. (Bordieri Decl., ¶ 96; Chencinski Decl., ¶ 34).
In response, Mr. Dunlop-McCullen disputes the contention that the Board was not made aware of the additional hires. He further states that the old administration failed to hire an adequate number of staff. As to Ms. Parham, the plaintiff states that the Board approved the hiring of an additional person. (Pl. Resp. at 53-54). Although, the plaintiff contradicts the defendants' proof, he fails to allege that the defendants made the statements with knowledge of their falsity or reckless disregard for its falsity. These statements, therefore, do not rise to the level of defamation.
5. Improperly threatening Union members in violation of their right to free speech
The last defamatory statement allegedly made by Mr. Grace is that the plaintiff "improperly used his office to intimidate and threate[n] a union member who was exercising her freedom of speech." (Pl. Amend. Comp. at 10). The defendants offer the testimony of Linda Cooper, a member of the Union Board, who testified that soon after the petition began circulating, the plaintiff posted a series of threatening notices at the Macy's White Plains store. Two of the notices threatened a lawsuit against those Union members who signed the petition. (Cooper Decl., ¶¶ 7-11 Exhs. A, C). Several Union members confided to her that they were afraid of being sued. (Cooper Decl., ¶ 8). Ms. Cooper eventually filed a charge with the NLRB. (Cooper Decl., ¶¶ 13-14 Exhs. E, F).
In response, Mr. Dunlop-McCullen admits that he was the author of the notices but argues that the content was truthful and therefore was "protected activity pursuant to the LMRDA." (Pl. Resp. at 10). Merely contradicting the statement once again fails to establish actual malice. Therefore, this claim fails.
Since all the statements allegedly made by defendants Bordieri and Grace had an uncontested factual basis or were made without actual malice, all of the claims against these two defendants should be dismissed.
Discussion — Counterclaims
The defendants also move for summary judgment on their counterclaims, which allege that Mr. Dunlop-McCullen violated the LMRDA, 29 U.S.C. § 411(a), by taking a series of unlawful actions designed to stifle the free speech rights of Local 1-S members. Specifically, the defendants allege that the petition, which criticized the plaintiff's conduct as Union president, was protected speech under the LMRDA and that the plaintiff's response to the petition, including authoring and distributing numerous bulletins and letters to Union members as well as filing the lawsuit, was in direct retaliation for this speech. (Amended Answer and Counterclaims ("Def. Ans."), ¶ 35). They further contend that his actions were committed under the color and authority of the Union. (Def. Ans., ¶ 61).
The LMRDA guarantees union members "the right to meet and assemble freely . . . and to express any views, arguments, or opinions." 29 U.S.C. § 411(a)(2). It also protects a member from being "fined, suspended, expelled or otherwise disciplined" for exercising any right guaranteed by this Act without being afforded a hearing. 29 U.S.C. § 411(a)(5); see Maddalone v. Local 17, United Brotherhood of Carpenters and Joiners, 152 F.3d 178, 183 (2d Cir. 1998). "The LMRDA was enacted to encourage democratic self-governance in unions and to curb widespread abuses and corruption among union leadership." Maddalone, 152 F.3d at 183. In determining the scope of protection afforded by the LMRDA, the Supreme Court has stated that, "Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules." Breininger v. Sheet Metal Workers International Association Local Union No. 6, 493 U.S. 67, 91 (1989). The Court also determined that the LMRDA's "specifically enumerated types of discipline . . . imply some sort of established disciplinary process rather than ad hoc retaliation by individual union officers." Id. at 91-92.
Here, Mr. Dunlop-McCullen opposes the motion for summary judgment for a number of reasons, including that this Court lacks subject matter jurisdiction over the claim. He argues that he was only acting in his individual capacity when he filed the lawsuit and not under the color and authority of the Union. (Pl. Ans. at 3-4).
The defendants contest the notion that he was not acting as a representative of the Local 1-S. As proof, they point out that all of the threatening notices were printed on Union letterhead, they were produced with Union equipment and resources, they were distributed in Union areas, and they were signed by Mr. Dunlop-McCullen in his capacity as Union president. (Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment at 9-10).
The defendants' argument is unavailing. They have failed to show that Mr. Dunlop-McCullen's actions constituted "punishment authorized by the union as a collective entity to enforce its rules" and were not simply ad hoc decisions by one union official. Breininger, 493 U.S. at 91. The defendants have presented no proof that they were ever subjected to official Union discipline, and all four of them continue to serve as Union members and Board members. In addition, they have proffered no evidence that any of their membership rights or status has been diminished in any way. See Konen v. International Brotherhood of Teamsters, 255 F.3d 402, 410 (7th Cir. 2001) (not disciplinary act by union where plaintiff continued to be member, was never disciplined by union, and membership rights were not diminished); Linnane v. General Electric Co., 948 F.2d 69 (1st Cir. 1991) (not disciplinary act by union where plaintiff failed to allege that "Union as a body in a proceeding formal or informal, deliberately voted" to approve misrepresenting the status of the plaintiff's grievance.
Since, at the very least, genuine issues of material fact exist as to whether the plaintiff acted in his official capacity or whether he acted as an ad hoc individual, summary judgment should not be granted on the defendants' counterclaims.
Conclusion
For the reasons set forth above, I recommend that the defendants' motion for summary judgment be granted as to the plaintiff's claims but denied as to the defendants' counterclaims. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Jed S. Rakoff, Room 1340, and to the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.