Robert Catalanello, left, said the article written by Zachary Kramer regarding a discrimination lawsuit filed against Catalnello by an ex-employee suggested the employee's allegations were proven facts.
Robert Catalanello, left, said the article written by Zachary Kramer regarding a discrimination lawsuit filed against Catalnello by an ex-employee suggested the employee’s allegations were proven facts. ()

A legal scholar will not have to face defamation claims for writing and speaking about a Wall Street manager who was being sued for allegedly calling an employee a “homo” for being a vegetarian, a Manhattan federal judge has ruled.

The manager, Robert Catalanello, had argued that Zachary Kramer, a professor at Arizona State University’s Sandra Day O’Connor College of Law, had written an article and given a lecture suggesting that allegations against Catalanello were proven facts, even though the employee’s sex discrimination lawsuit was pending.

Southern District Judge Paul Engelmayer (See Profile) ruled on Wednesday in Catalanello v. Kramer, 1:13-cv-07121, that Kramer’s article and lectures provided enough context to make clear that the allegations were not proven. He also ruled that some of Kramer’s statements targeted by Catalanello’s suit were protected statements of opinion.

The underlying discrimination suit was filed in 2009 in state Supreme Court by Ryan Pacifico, a former foreign exchange trader at Credit Agricole. He brought discrimination claims under New York City and state human rights laws, alleging that Catalanello subjected him to a hostile work environment.

Among other allegations, Pacifico said Catalanello called him “gay” and “a vegetarian homo” in front of colleagues after learning that he did not eat meat. Pacifico eventually quit. Catalanello denied the allegations in an answer to the complaint. In 2012, Pacifico dropped the suit with prejudice without disclosing why.

In 2011, the Washington University Law Review published Kramer’s article about the lawsuit, called “Of Meat and Manhood.” Kramer wrote that plaintiffs began filing claims alleging that they faced discrimination for failing to behave according to gender stereotypes, and that courts were becoming suspicious of such claims as attempts to “bootstrap” sexual orientation, which is not a protected category in most states, onto sex discrimination claims. Kramer argued that this was mistaken, and “that sometimes sex discrimination manifests as other forms of bias.” He used Pacifico’s case as a key example, and talked about his allegations in detail.

In 2012, Kramer gave a lecture on the article at the Western New England University School of Law.

Catalanello sued Kramer that year in the District of New Jersey; the case was transferred to the New York in 2013. He brought two counts of defamation and two of false light invasion of privacy, one each for the article and the lecture. Kramer moved to dismiss.

Engelmayer, granting that motion, first noted that the case would be governed by New Jersey law, where Catalanello lived.

He found that Kramer’s statements were protected under New Jersey law by “fair-report privilege,” which protects a “full, fair and accurate” account of statements made in an official proceeding, like a lawsuit, even if they are defamatory.

Engelmayer found that, while Kramer did not “consistently repeat the words ‘claim’ or ‘allegation’” throughout his article and lecture when recounting Pacifico’s allegations, he did introduce the lawsuit by noting that it was still in progress.

“Here, Kramer gave a ‘full, fair, and accurate account’ of the allegations in Pacifico’s then-ongoing discrimination suit against Catalanello,” the judge wrote. “Significantly, Kramer did so in a way that made clear that the information presented from the Pacifico lawsuit consisted of mere allegations and that the lawsuit remained pending.”

The judge acknowledged that some sentences, on their own, appeared to say that Catalanello had definitely done what Pacifico said he did, but found that these sentences “cannot be stripped from their context.”

“Taken as a whole, Kramer’s account gives a substantially correct account of the allegations in the Pacifico complaint, and does not give the reader the erroneous impression that these allegations are proven ‘facts,’” the judge said.

Catalanello also had targeted Kramer’s thesis about the true nature of Catalanello’s alleged discrimination. Kramer claimed that vegetarianism and sexual orientation were merely “proxies” for Catalanello’s real motive—that Pacifico failed to conform to his “idea of how a ‘real’ man is supposed to look and act.”

Engelmayer found that this was a statement of opinion, and thus not subject to a defamation claim.

Catalanello is represented by Thomas Cafferty, a director at Gibbons, and Jonathan Klein, an associate there.

Kramer is represented by Peter Shapiro, a partner at Lewis Brisbois Bisgaard & Smith.

The attorneys could not be reached for comment.