March 6, 2018

Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer
Abbitt v Carrube, 2018 NY Slip Op 01394, Appellate Division, First Department

Supreme Court denied Serena Abbit'spetition to annul the Subway Surface Supervisors Association [SSSA] decision sustaining the recommendation of SSSA's trial committee that Abbitt be removed from her elected position as Section Vice President. The court then dismissed the proceeding and granted SSSA's motion to dismiss Abbitt's libel claims.

The Appellate Division affirmed the Supreme Court's decision, explaining that SSSA's removal of Abbitt from her elected position was "consistent with its constitution and is rational and not arbitrary and capricious.

The court said that Abbitt persistent using her personal business cards, her personal email address, and her personal cell phone number notwithstanding directions to use those provided by SSSA, constituted a disregard of SSSA's direction and disloyalty to the organization.

The Appellate Division also noted the Abbitt [1] was provided with the requisite notice of the charges and an opportunity to be heard; [2] fully participated in the hearing, at which she was represented by counsel; and [3] at which hearing the charges were clarified. Abbitt, said the court, failed to identify anything in SSSA's constitution that supports her contention that she is entitled to the same due process protections with respect to her appointed position.

As to Abbitt's claim of libel,  the Appellate Division held the such claim against SSSA was correctly dismissed "since absolute immunity from liability for libel attaches to [a] the trial committee's charges initiating the quasi-judicial proceedings against her and [b] to the hearing officer's decision.

As to Abbitt's libel claim against SSSA's president, Michael Carrube, this claim was correctly dismissed as the alleged libelous statement that Abbitt "violated the chain of command," was at least substantially true and Carrube's description of Abbitt's behavior as "unethical" and "detrimental to the members [of SSSA]" was an expression of pure opinion and "supported by a factual predicate."

The Appellate Division then ruled that libel claim against the New York City Transit Authority [NYCTA] Senior Vice President of Labor Relations Johnson based on statements in an email to Carrube about the nature of the relationship between NYCTA's Office of Labor Relations and SSSA and the need for "mutual cooperation" and "respect" between them in which the Senior Vice President use of words such as "inappropriate," "disrespect," and "intimidation" to characterize Abbitt's conduct was also an expression  opinion regarding her performance and its effect on SSSA's relationship with NYCTA, and, considering the context of the entire email, including its tone and purpose, is not actionable.

Finally, the Appellate Division held that the only factual statement in Senior Vice President's  email challenged by Abbitt was made to someone "with a common interest in the subject matter" and was therefore protected by a qualified privilege and Abbitt's allegation of malice on the Senior Vice President's part "is conclusory and therefore insufficient to overcome the privilege."

The decision is posted on the Internet at:

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