In its November 23, 2016 decision in Pall v. Roosevelt Union Free Sch. District, the Appellate Division, Second Department, affirmed the granting of summary judgment dismissing the plaintiff’s claim for defamation. The order granting summary judgment had been made below by the Supreme Court, Nassau County Justice Michele M. Woodard.
Plaintiff, who was employed by the School District as a teacher, alleged that she was subjected to a discriminatorily hostile work environment. She also claimed that the School District defamed her by not redacting an anonymous student’s comment referring to teachers in the school district, and plaintiff in particular, as “bitches”. The Appellate Division upheld Justice Woodard’s finding that plaintiff had failed to allege facts sufficient to establish a hostile work environment under New York Executive Law § 296. The Appellate Division also agreed with Justice Woodard’s finding that because calling someone a “bitch” is merely an opinion, it does not suffice to state a claim for defamation.
New York’s Court of Appeals (our state’s highest court) has held that only statements alleging facts (as opposed to opinions) can properly be the subject of a defamation action. However, as is often the case in law, the difference between statements that are factual, as opposed to mere opinions, is not as clear as it seems. The Court of Appeals has held that while a “pure opinion” can never give rise to a defamation claim, there are instances in which someone expresses an opinion that implies that it is based on facts. This is called a “mixed opinion”. In 2014 in the case Davis v. Boeheim, the Court of Appeals offered an extensive discussion of New York’s three-part test for distinguishing statements that are “pure opinion” as opposed to statements that constitute “mixed opinion”.
In any event, under New York law, calling someone a “bitch” is clearly just an opinion. Eighteen years ago, Judge Herman Cahn of the New York County Supreme Court reached the same conclusion about “bitch” being just an opinion. In the 1998 case of Culverhouse v. Cooke Center for Learning and Development, Inc., plaintiff alleged that her employer defamed her by calling her a “rich bitch”. In his interesting decision, Judge Cahn cited a litany of prior court decisions relating to the use of the term “bitch”, and concluded that although the term is vulgar, it constituted imprecise, non-actionable name calling.
Interestingly, not everyone shares the view that being called a bitch is even a bad thing (let alone defamatory). One commentator has written that being called a bitch signifies that a woman is decisive, firm and confident. Another author has suggested that the term now signifies an independent woman who is confident.
Marc Rapaport is a New York employment lawyer with 21 years of experience representing employees against the world’s largest corporations in matters involving discrimination, wrongful termination, overtime claims, and related issues. He is the founder of Rapaport Law Firm, PLLC, a civil litigation boutique located in Midtown Manhattan.