Posting That Employer Is “Racist” Because “He’s Voting for Trump” Isn’t Defamation
From Espinoza v. CGJC Holdings LLC, decided today by Judge Denise Cote (S.D.N.Y.):
The following facts are taken from the pleadings. They are assumed to be true for the purposes of this motion.
Espinoza worked for approximately one year as a phone server at Joe and Pat’s Pizzeria and Restaurant …, which is owned by CGJC Holdings. The individual defendants in this action … are all co-owners and managers of the Restaurant.
Defendants allege that they chose to terminate Espinoza’s employment at the Restaurant after Espinoza posted the following statement as a “story” on her Instagram social media page on October 22, 2020 (the “October 2020 Post”):
[I]f you thinking about coming to eat at my job, dont [because] my manager told me he’s voting for trump dont give racists your money !!!
Defendants further allege that the October 2020 Post was publicly available to “thousands” of people, that the Restaurant was the “only employer” Espinoza identified in her public profile at the time, and that it was “widely known” that the individual defendants were owners or managers of the Restaurant.
Defendants assert that they “requested that Espinoza take down” the October 2020 Post. After she “failed or refused to do so,” they terminated her employment.
Espinoza initiated this action on October 17, 2023. An Opinion of July 23, 2024 granted in part defendants’ April 26, 2024 motion to dismiss Espinoza’s first amended complaint.
Espinoza’s claims for a hostile work environment based on her race, gender, sexual orientation and disability, and for retaliatory termination of her employment survive. Espinoza’s claim of retaliation is premised on her assertion that she was fired due to her complaints … that the bartender had sexually harassed her. Discovery is ongoing.
The defendants counterclaimed “against Espinoza for common law defamation, t
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