Catalanello v. Kramer

18 F. Supp. 3d 504, 2014 WL 1807108, 2014 U.S. Dist. LEXIS 63044
CourtDistrict Court, S.D. New York
DecidedMay 7, 2014
DocketNo. 13 Civ. 7121(PAE)
StatusPublished
Cited by11 cases

This text of 18 F. Supp. 3d 504 (Catalanello v. Kramer) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catalanello v. Kramer, 18 F. Supp. 3d 504, 2014 WL 1807108, 2014 U.S. Dist. LEXIS 63044 (S.D.N.Y. 2014).

Opinion

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

This defamation suit arises out of the treatment by a scholar, both in a law review article and a related lecture, of an incident involving a securities industry trader that had been the subject of a publicized employment lawsuit.

Plaintiff Robert Catalanello (“Catalanel-lo”) is a managing director for Credit Agri-cole CIB (formerly known as Calyon) (“Credit Agricole”) in New York. He [508]*508brings claims of defamation and false-light invasion of privacy against defendant Zachary Kramer (“Kramer”), an associate dean and professor of law at the Sandra Day O’Connor College of Law at Arizona State University. Catalanello’s claims arise out of (1) an article titled “Of Meat and Manhood,” which Kramer wrote and which was published in the Washington University Law Review, and which in part addressed a previous employment-discrimination lawsuit brought against Catalanel-lo; and (2) a lecture given by Kramer at the Western New England University School of Law, titled “Of Meat and Manhood/The New Sex Discrimination.” Kramer moves to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, that motion is granted.

I. Background1

A. Factual Background

1. The Pacifico Lawsuit Against Catalanello

On January 26, 2009, Ryan Pacifico, a former junior foreign exchange trader at Credit Agricole, filed a lawsuit in New York State Supreme Court. The suit alleged that Catalanello, Pacifico’s former supervisor, had discriminated against him and subjected him to a hostile work environment, in violation of the human rights laws of New York State and New York City. See Am Compl. ¶ 11; Dkt. 69 (Affidavit of Zachary A. Kramer (“Kramer Aff.”)) Ex. G (“Pacifico Compl.”). Relevant here, Pacifico alleged that Catalanello perceived him to be gay because Pacifico was a vegetarian, and that Catalanello had subjected Pacifico to harassment based on this assumption. Pacifico Compl. ¶¶ 10-22. Specifically, Pacifieo’s Complaint alleged that Catalanello would call Pacifico “gay” or “homo” in front of coworkers, and would harass him for not eating meat. See, e.g., id. ¶ 10 (alleging that “[i]n or about 2007, Pacifico was showing a colleague pictures of himself online competing in a triathlon. Catalanello approached, and referring to Pacifico’s biker shorts, said ‘That’s you? Those are some pretty gay tights. Figures you’d like them.’ ”); id. ¶ 14 (alleging that “[wjhile arranging for a dinner for [Credit Agrieole’s] New York foreign exchange traders ... Catalanello told the traders they were all going out to a Brazilian steakhouse. When one asked what Pacifico can eat there, Catalanello replies, ‘Who the fuck cares? It’s his fault for being a vegetarian homo.’ ”). On August 12, 2009, Catalanello filed an Answer, denying the allegations in Pacifico’s Complaint. Am. Compl. ¶ 12; Kramer Aff. Ex. G at 12-18.

On August 22, 2012, Pacifico voluntarily terminated his suit against Catalanello with prejudice. Am. Compl. ¶ 14; Dkt. 68 (Declaration of Peter T. Shapiro (“Shapiro Decl.”)) Ex. B.

2. Kramer’s Law Review Article

In August 2010, while Pacifico’s lawsuit was pending, Kramer began researching and writing an article about emerging is[509]*509sues in employment discrimination law. See Am. Compl. ¶ 8; Kramer Aff. ¶ 23. In February or March 2011, Kramer submitted the article to law reviews for publication, using an online service operated by the Berkeley Electronic Press. See Am. Compl. ¶ 8; Kramer Aff. ¶ 24. In March 2011, Kramer accepted an offer from the Washington University Law Review to publish the Article and, during that same month, posted the Article to the Social Science Research Network (SSRN), an online repository of academic research. See Am. Compl. ¶ 8; Kramer Aff. ¶ 24. On March 15, 2012, a revised version of the article was published in print and online in the Washington University Law Review. See Am. Compl. ¶¶ 9-10; Kramer Aff. ¶ 25.

In the article, Kramer challenges how existing employment discrimination law characterizes sex discrimination — specifically, the law’s treatment of gender stereotyping. Kramer argues that courts “have grown increasingly suspicious of gender— stereotyping claims that they view as attempts to capture traits not protected under Title VII,” such as sexual orientation, and “have regularly rejected these claims, characterizing them as impermissible attempts to ‘bootstrap’ protection for sexual orientation into Title VII.” Kramer Aff. Ex. H (“Article”) at 6. The goal of the article, according to Kramer, “is to show that this bootstrapping logic is faulty,” and to advocate for a more “holistic” approach to complex sex discrimination claims, which recognizes “that sometimes sex discrimination manifests as other forms of bias.” Id. at 7, 8. At several points, the article uses the allegations in the Pacifico Complaint regarding male vegetarianism in support of that discussion. Id. at 7-9, 20-28. Relevant here, the article describes the Pacifico Complaint as a “case stud/’ or “vehicle” to “highlight! ] the messiness of modern sex discrimination” both “in terms of how employees experience discrimination” and “in terms of how courts analyze sex discrimination claims.” Id. at 7. After discussing Pacifico’s Complaint, Kramer concludes by stating that “[t]he lesson of Pacifico’s case is that sex discrimination sometimes manifests as other forms of discrimination — in this case, as a hybrid of vegetarian and sexual orientation discrimination,” which, in turn, reveals “a fundamental limitation of Title VIPs discriminatory causation analysis: the mismatch between the legal regulation of discrimination and the lived experience of discrimination.” Id. at 28.

3. Kramer’s Lecture

On April 10, 2012, Kramer gave a lecture, based on the article, at the Western New England University School of Law in Massachusetts. Am. Compl. ¶ 30; Shapiro Deck Ex. D (“Lecture Video”). His lecture also discussed the Pacifico Complaint and Kramer’s theory to the effect that male vegetarianism is, wrongly, an unprotected trait in federal employment discrimination law. See Am. Compl. ¶34; Lecture Video. In discussing the Pacifico Complaint in the lecture, Kramer stated that “the facts are still contested at this point, but it doesn’t look good.” Lecture Video at 25:55. Although Kramer did not identify Catalanello by name in the lecture, Kramer did cite the article, in which Cata-lanello is identified by name. Am. Compl. ¶ 51. A recording of the lecture was later published by Western New England University School of Law’s website under “School of Law News.” Am. Compl. ¶ 32.

B. Procedural History

On December 28, 2012, Catalanello filed his original Complaint in this case in the District of New Jersey, naming Kramer, the Washington University School of Law, and the Western New England University School of Law as defendants. Dkt. 1. On [510]*510May 23, 2013, Washington University School of Law was voluntarily dismissed with prejudice. Dkt. 37. On September 19, 2013, Western New England University School of Law was also voluntarily dismissed with prejudice. Dkt. 47.

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Bluebook (online)
18 F. Supp. 3d 504, 2014 WL 1807108, 2014 U.S. Dist. LEXIS 63044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catalanello-v-kramer-nysd-2014.