OBI v. AMOA

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Wilson OBI, Plaintiff, v. Kwesi AMOA, Shermaine Austin, William Harris, Wilbert Hope, John Gibbs, and Leon Johnson, Defendants.

Decided: August 21, 2017

A. Joyce Furfero, Esq., Scarsdale, attorney for plaintiff. Cheryl M. Rameau, Esq., Assistant Attorney General, State of New York Office of the Attorney General, New York, attorney for defendant.

Plaintiff Wilson C. Obi (“plaintiff” or “Obi”) originally brought an action against the six above named defendants seeking damages for a number of torts, including defamation, intentional and negligent interference with business contact, intentional infliction of emotional distress and prima facie tort. Obi is a tenured Associate Professor of Mathematical Physics in the Department of Physical, Environmental and Computer Sciences (“PECS”) at Medgar Evers College (“MEC”), a four year college within the CUNY system. All of the six named defendants are professors within the PECS departments, and all, with the exception of Harris, at some point served as chairs of that department.

Background Testimony

Dr. Obi joined the faculty at MEC in 1991 as a professor of math in the Science Department and then transferred to the Math Department where he taught calculus and algebra for about five years. In 1996, plaintiff transferred to PECS which is a department within the School of Science, Health & Technology (“SSHT”) as an Associate Professor of Mathematical Physics and received tenure that same year. Obi is still employed at MEC although he currently is not teaching any classes PECS and claims that he is ostracized by other members of the department.His resume, compiled in 2000, lists that he has taught algebra, physics, physical science, pre-calculus and “calculus with computers.” (Tr. 5/28 at 53).

Between approximately 2000 and 2002 all of the PECS faculty members developed and ultimately approved a “Proposal to Establish a Program in Computer Science leading to a Bachelor of Science (“Proposal”)(Pl.”3”).1 The Computer Science Proposal was a lengthy document which summarized all of the computer science courses taught to date and contained proposed new courses. It also included the resumes of all faculty members and grants that they worked on. The Introduction to the Proposal indicates that the proposed Bachelor of Science Degree in Computer Science would have three concentrations: General Computer Science, Telecommunications and Computational Science (Proposal at 3). Obi was listed as a professor in the Telecommunications concentration. The Proposal was ultimately approved by the MEC College Counsel in May 2002.

Dr. Leon Johnson (“Johnson”) has worked at MEC since 1987 as a Professor of Physics, and has been a member of PECS since 1992. He served as chair of PECS from 1995 to 2003 and also has worked as a University Research Associate with NASA Goddard Institute for Space Studies (“GISS”) in New York; this is a small NASA research center in a building owned by Columbia University. He has co-authored numerous publications and papers involving physics and climate change. According to Johnson, Wilber Hope is the current chair of PECS.

Johnson testified that Obi transferred to PECS in 1996 or 1997 after the Personnel & Budget Committee (“P & B Committee”) of the Mathematics Department denied him tenure. Johnson facilitated Obi's transfer into PECS after he had numerous discussions with Obi concerning education and research collaborations with GISS wherein Obi showed enthusiasm. Johnson brought him over so he could develop research and mentor and involve undergraduate students in research projects with CUNY faculty and NASA scientists. Although Johnson did not think Obi's teaching was strong and did not bring him in to teach at PECS, he listed the following courses that Obi was qualified to teach when he defended Obi before the College-wide P & B committee: basic physics, physical science courses, and telecommunications courses. Obi was granted tenure while in PECS.

Dr. Shermaine Austin has an extensive background in Computer Science. She received her PhD in Computer Science and has taught computer science at CUNY for a total of 26 years. Austin taught computer science courses at the Computer Science Department of the School of Engineering at City College until 2001 when she transferred to MEC wherein she ultimately received tenure. Austin served as the Chair of PECS from 2007 until 2009. In 2010, the Chair, Wilbur Hope, appointed Austin as Coordinator of PECS wherein she assisted and advised the Chair on programming and discipline and internships for students (See Def. I—deposition of Wilbur Hope; Pl. 13—deposition of Amoa).

At some point in the 2000s Obi's relationship with the various defendants deteriorated and he was ultimately brought up on disciplinary proceedings, which are not the subject of the instant matter. Obi ultimately brought the instant lawsuit which alleged that the defendants committed various torts and tortious interference with his contract. Defendants moved for summary judgment dismissing all counts on the grounds that plaintiff failed to state any causes of action grounded in either tort or contract.2 With respect to plaintiff's defamation causes of action, defendants argued that all of the subject statements constituted opinions rather than factual statements and that plaintiff failed to show the statements' falsity. Defendants also asserted that even if their statements were false, they were protected by the common interest privilege since both the senders and recipients of the emails shared a common interest in MEC's integrity and specifically, its computer science bachelor degree program. As such, defendants assert that they could only be found liable if the statements were made with actual malice.

Plaintiff countered that defendants statements constituted defamation per se by injuring his business or occupation. While admitting that defendants had a common interest as employees in the same institution, plaintiff contended that the common interest privilege did not apply because defendants failed to show that all recipients of the emails shared said interests. Even assuming that the actual malice standard applied, plaintiff contended that malice could be inferred by defendants' wide distribution of the emails—which proved that the emails were not exchanged to discuss plaintiff's credentials but rather were “a blatant attempt to blanket the school” with defamatory statements about plaintiffs (Dec. at 10).3 Plaintiff also asserted that defendants evinced a reckless disregard of whether the statements were false because all the defendants were his colleagues and thus had to be aware of his teaching computer science courses and contributing to the computer science program (Id.).

Decision on Summary Judgment

Justice Vaughan granted defendants' summary judgment on the tortuous interference with contract, prima facie tort, and intentional and negligent infliction of emotional distress claims.4 The court also granted defendants' summary judgment on the vast majority of the statements that plaintiff identified as defamatory as they could only be read as “expressions of opinion.” (Dec. at 17). While noting that many of these statements were “stinging,” the court found that they clearly only reflected the writers' points of view (Id.). Justice Vaughan found that only three statements remained that might properly be considered as potentially false assertions of fact, susceptible to defamatory meaning:

1) Defendant Leon Johnson's statement in a December 11, 2009 email: “On the resubmission of the [NASA] grant, Dr. Obi was dropped due to a lack of performance.”

2) Defendant Shermain Austin's statement in a May 17, 2001 email: “In Dr Obi's first attempt at CS 241 this Spring, he changed the course description, syllabus and prerequisites. Required material for this course was omitted ․”

3) Dr. Austin's statement in the same email: “Dr. Obi has never taught a Computer Science course until this spring.”

Justice Vaughan found that since defendants had a made a prima facie showing that the senders and recipients of these emails, “as faculty, administrators and other persons closely involved in PECS, shared a common interest” in the integrity and well being of both PECS and MEC (Dec. at 18) plaintiff would have to prove that these statements were made with actual malice (Dec. at 18–19). Since plaintiff raised “factual questions” as to whether Austin and Johnson made these statements with actual malice in that “they may have been aware of their statements' falsity,” summary judgment was denied as to these three statements.5 (Id. at 19).

As will be detailed below, after trial this Court finds that Johnson's statement and Austin's first statement (nos. 1 and 2) were factually correct and hence nonactionable. While the Court finds that Austin's third comment that Obi never taught a computer class until this spring was false, it also finds that plaintiff failed to prove that Austin made this comment with either common law or constitutional malice. As such, the case is dismissed.

General Principles of Defamation Law

Defamation is defined as the making of a false statement which “tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1076 (1997); Foster v. Churchill, 87 N.Y.2d 744, 751 (1996). See, Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379 (1977) cert denied 434 U.S. 969 (1977). To sustain a cause of action for defamation, a plaintiff must prove that the statement at issue was false, published without privilege or authorization to a third party, constituting fault as judged by either a negligence or actual malice standard, and injury to the plaintiff in the form of either special damages unless it constitutes defamation per se. Celle v. Filipino Reporter Enters., 209 F.3d 163, 176 (2d Cir.2000); Tongring v. Bronx Cmty. College of the City Univ. ․, 2014 U.S. Dist. LEXIS 14099 (S .D.NY 2014); Idema v. Wager, 120 F.Supp.2d 361, 365 (S.D.NY 2000); Church of Scientology Int'l v. Eli Lilly & Co., 778 F.Supp. 661, 666 (S.D.NY 1991). See, O'Neill v. New York Univ., 97 AD3d 199, 212 (1st Dep't 2012); Dillon v. City of New York, 261 A.D.2d 34, 38 (1st Dep't 1999); Jacobus v. Trump, 55 Misc.3d 470 (Sup.Ct., N.Y. Co.2017).

To determine whether the publication is reasonably susceptible to plaintiff's interpretation, a court must construe the statements “in their general understanding and ordinary meaning as perceived by the average reader.” Cantrill v. Herald Co., 1992 U.S. Dist. LEXIS 7629 at 13 (N.D.NY 1992). The words are to be construed “not with the close precision expected from lawyers and judges” but as they would be understood by the average reader or public to which they are addressed. Celle, supra, 209 F.3d at 177–78; Brattis v. Rainbow Advertising Holdings, LLC, 2000 U.S. Dist. LEXIS 7345 at 8–9 (S.D.NY 2000). See, Donofrio–Ferrezza v. Nier, 2005 U.S. Dist. 21103 at 18 (S.D.NY 2005) citing to Steinhilber v. Alphonse, 68 N.Y.2d 283, 290 (1986). The “thrust of the dispositive inquiry” is “whether a reasonable [reader] could have concluded that [the publications were] conveying facts about the plaintiff.” Levin v. McPhee, 119 F.3d 189, 195 (2d Cir.1997) citing to Gross v. N.Y. Times, 82 N.Y.2d 146, 153 (1993).

The courts must look not only as the particular words alleged to be libelous, but review those words in light of entire context of the article (Cantrill, supra, 1992 U.S. Dist. LEXIS at 13) and its tone and apparent purpose. Frechtman v. Gutterman, 115 AD3d .102, 106 (1st Dep't 2014). Instead of parsing out and evaluating the challenged statements in isolation, New York courts look to the immediate context and the broader social context of the statement (Brian v. Richardson, 87 N.Y.2d 46, 52 (1995)) and evaluate the impact that the statements would have on a reasonable reader. See, Immuno AG v. Moor–Jankowski, 77 N.Y.2d 235, 254 (1991). When the defendant's statements, read in context, are readily understood as conjecture, hypothesis, or speculation, this signals the reader that what is said is opinion, and not fact. See, Gross, supra, 82 N.Y.2d at 155.

Truth “is an absolute defense to a defamation action and “substantial truth” is all that is required; minor inaccuracies are to be overlooked. Blair v. Inside Ed. Prods., 7 F.Supp. 348. 357 (S.D.NY 2014); Donofrio–Ferrezza, supra, 2005 U.S. Dist. LEXIS 21103 at 16 citing to Smith v. United Church Ministry, Inc. 212 A.D.2d 1038–39 (4th Dep't 1995). This defense requires only that the “gist or substance of the challenged statements be true,” not that they be completely accurate. Donofrio–Ferrezza, supra at 16 citing to Printers, II, Inc. v. Prof'ls Publishing Inc., 784 F.2d 141, 146 (2d Cir.1986); Leidig & Central European News Ltd v. Buzzfeed, Inc., 2017 U.S. Dist. LEXIS 76660 (S.D.NY 5/9/2017). The plaintiff bears the burden of showing the falsity of the factual assertions. Prozeralik v. Capital Cities Communs., 82 N.Y.2d 466, 473 (1993). See, Savino v. City of New York, 168 F.Supp.2d 172, 179 (S.D.NY 2001).

Application of Law to The Three Statements

1) Johnson's statement on December 11, 2009 that: “On the resubmission of the grant, Dr. Obi was dropped due to a lack of performance”

An analysis of whether this statement was true or false involves the proverbial “he said—he said” situation. Plaintiff denies that he was dropped from the grant due to lack of performance, and states that he requested that his name be removed at the time of the resubmission of the grant because Johnson would not let him hire an assistant and that “it was not a good fit” (Tr. 5/28 at 74). Johnson, on the other hand, claims that he was the primary principal investigator of the grant and that he dropped Obi from the grant due to his failure to “further the intended objectives of the grant.” (Tr. 9/10 at 26).

Johnson testified that prior to Obi's transfer into PECS, he spoke with Obi about possible collaborative research with GISS. Johnson had already established two or three grants and wanted to develop new collaborations with CUNY faculty. They obtained the subject grant entitled “Ocean and Atmospheric Environmental Science Research Program” (“Ocean Grant”) from GISS in 1997 for an initial amount of $400,000 a year for two years. Johnson was the principal investigator and author of the grant and as such was responsible for the “implementation of grants and everything that goes under that grant.” (Tr. 9/11 at 20). Obi and Hope were listed as co-investigators and were responsible for the implementation of the grant.

Obi, on the other hand, claimed that he held the position of co-principal investigator along with Johnson—an agreement that they made in writing. The principal investigator was supposed to write proposals as to how to spend the grant money and run the research and identify the particular type of research or duties that the co-principals planned to engage in. However, Obi never submitted into evidence either any proposals he had written or the purported written agreement between him and Johnson.

Obi testified that the purpose of the Ocean Grant was to establish an infrastructure at MEC for doing research with NASA, and that his specific task was to work on a computer system that would enable such research with NASA. Obi purchased a computer for this project on which he installed a program from the National Oceanic Atmospheric Association (“NOAA”). However, on cross, Obi's testimony became quite confusing. He testified that the grant he was co principal on with Johnson had nothing to do with GISS and that during this period he also worked with a Dr. Victoria Canuto, who is a NASA scientist at Goddard, on site at Goddard. Obi began to lose interest in the work involved in Dr. Canuto's grant and subsequently stopped going to Goddard to work with him.

At the end of the first year, Obi wanted to employ an assistant who would run the program while he designed experiments and performed other research. Johnson refused to allow Obi to hire an assistant and instead, according to Obi, used the funds from the grant to purchase computers for his friends. In response to Johnson's refusal, Obi refused to do any further work under the grant and asked that his resume be removed when the grant was resubmitted for the second year. On cross, Obi stated that after telling Johnson that he no longer wanted to work with him, Obi wrote another grant since Johnson did not know how to write grants and that they were not working with GISS “but with a small group of NASA that was funding mostly minority groups” (Tr. 5/28 at 74).

Johnson does not recall Obi ever informing him that he did not want to work on the grant anymore or not to use his resume for resubmission. Nor did Johnson recall Obi submitting any written work for the grant. Johnson also refuted Obi's claim that he was working on two separate grants during the time at question; the work Obi did with Canuto—to perform research on ocean modeling—was part of the same grant. (Id. at 28). After about a semester, Obi told Johnson that he no longer wanted to work with Dr. Canuto because Canuto was “treating [him] as a grad student.” (Id. at 22). Johnson does not recall Obi ever asking him to hire an assistant, but said that if he would have denied the request if asked, since he did not have any authority under the grant to hire an assistant, as there was no money allotted for assistants. Johnson denied Obi's allegations that he had taken money for the grant and utilized it to purchase computers for his friends and stated that he only bought one computer, the one for Obi's ocean modeling project. (Id. at 25).

When Johnson resubmitted the grant in 1999 for another two-year period, he did not include Obi. As principle investigator, Johnson dropped Obi for lack of performance because Obi did not integrate the research into the curricula, enhance MEC's relationship with GISS or involve undergraduate students in the research—the primary purposes for setting up the grant. Johnson never saw Obi perform any of these activities and he only mentored one student during the course of two years.

During cross-examination, counsel directed Obi to page 17 of the Proposal, entitled “Faculty Grants and Awards—1997–2003” which listed the award names, the amount of money granted and the principal investigator for each. Obi was unable to find his name on the list of principal investigators and claimed he did not see the grant he worked on with Johnson on the page, although both Defendant Austin and Johnson and Hope were listed as principal investigators multiple times from 1997 on and most of the grants involved NASA. Upon further questioning as to the full name of the grant that he authorized, Obi stated that he could not remember.

Johnson gave unrefuted testimony about his altruistic motives for assisting Obi in obtaining a position in PECS after Obi was denied tenure by the Math Department. Based upon his discussions with Obi concerning education and research collaborations with Goddard Institute, wherein Obi showed enthusiasm, Johnson brought him over so he could develop research and mentor and involve undergraduate students in research projects with CUNY faculty and NASA scientists. This, combined with the documentary evidence, supports Johnson's testimony that Obi was a co-investigator rather than a co-principal. Obi failed to produce any documents to support his claims that he either applied or a wrote any grants or acted as a co-principal. Based upon the above, this Court finds Johnson's version of the events more credible, and that Johnson's statement that upon the resubmission of the [NASA] grant, he dropped Dr. Obi due to lack of performance was truthful and hence nonactionable.

2) Austin's May 17th email: “(I)n Dr. Obi's first attempt at CS 241 this Spring, he changed the course description, the syllabus, and course prerequisites” for the CS 241 class

Austin's May 17th email has its genesis in her email dated March 29, 2010 (Def.D) wherein she informed Obi that he had changed the course description, syllabus, text book, and prerequisites for CS 241. In this email she informed Obi that CS 241 was a sophomore level course that included foundation material for subsequent courses and that PECS was committed to following the ACM/IEEE curriculum for the BS degree in computer science, which was “an important component in the acceptance of our proposal to CUNY.” Harris, Johnson, Hope and Patwary were cc'd in this email.

Course Description

Austin testified that a course description is a brief summary of the concepts that would be taught in the course whereas the syllabus is a more detailed outline. Austin stated that Obi changed the course description by omitting required material and then adding additional prerequisites to the course. Obi testified that his course description for CS 241 was substantively the same as the course description submitted as part of the Proposal for a Bachelor's degree in Computer Science.

Austin testified that while some of the materials included in Obi's course description were beyond the scope of a low level course, other materials, which were required for a low level course were listed as “as needed” rather than “as required.” Specifically, in her March 29, 2010 email, Austin informed Obi that while he could add optional elements to the course, he could not omit required elements. Thus, Obi's statement in his course description that “Formal logic, set theoretic concepts, relations, functions and matrices will be introduced as needed in applications” was incorrect as those areas are required components of the course. She also wrote that whereas the course description for CS 241 that Dr. Harris provided to Obi was equivalent to those used in other CUNY Structures courses, Obi's course description was not equivalent to those used at other CUNY colleges. On cross examination, Obi admitted that all of the topics listed by Austin in the email were required components.

Obi admitted that the course description for CS 241 provided in the Proposal was still in use as of 2014. A comparison of the Proposal's course description (Pl. 3 and 6, Def. G) and Obi's course description (Pl.5) reveals differences in verbiage. While Obi states that “Accurate but sometimes heuristic proofs of important results will be given: induction, geometric and combinatorial techniques will be demonstrated,” the Proposal does not list any of these elements apart from combinatorial computing. The Proposal lists the following concepts that were not included in Obi's course description: proof techniques, vectors, and counting arguments. Obi's course description mentions the following topics not listed on the Proposal: elementary number theory, programming language fundamentals, induction and geometrical techniques.

This is not a disciplinary case where the court is called upon to dissect substance over form and analyze the intricacies of academia. Rather, as set forth in Celle, supra, 209 F.3d at 177–78, the words are to be construed “not with the close precision expected from lawyers and judges” but as they would be understood by the average reader or public to which they are addressed. Furthermore, as long as the statement is substantially truthful, it is non actionable. Words are characterized as “imprecise” when they are “indefinite and ambiguous” and “when they mean different things to different people and hence cannot be proven true or false because of their “subjective, relative meanings.” Jacobus, supra, 2017 N.Y. Misc. LEXIS at 10–11 citing to Live Face on Web, LLC v. Five Boro Mold Specialist, Inc., 2016 U.S. Dist. LEXIS 56601 (S.D. N.Y.2016). Cf. Idema v. Wager, 120 F.Supp.2d 361, 366 (S.D. N.Y.2000) (The word “militant” has many meanings and shades of meaning, ranging from the religious ․ to the political, and thus does not have a precise meaning and an average reader would be more likely to conclude that the word was used as an opinion about plaintiff, rather than as a fact).

The word “change” is defined as “Alter; cause to pass from one place to another; exchange; make different; put one thing in place of another ․” Black's Law Dictionary, 4th edition at p. 293. It does not have many meanings or shades of meaning but rather has a “precise and readily understood meaning.” Cf. Kaplan v. Khan, 2011 N.Y. Slip Op 50879U, 31 Misc.3d 1227(A) (Sup Ct. Kings Co.2011) (Accusation made during prayer meeting that the plaintiff was a “whore” and was “running a house of prostitution” had a sufficiently precise meaning). A comparison of the two documents as well as the testimony reveals that Austin's statement that Obi altered the course description is true.

Change of Syllabus

In her March 29th email, Austin wrote that Obi's syllabus (Pl.5) omitted required elements of the Discrete Structures curriculum determined by ACM/IEEE (Def.E) that Dr Harris had incorporated into his syllabus which he had provided to Obi (Def.G). Austin stated that in March 2010, half way through Obi's course, she received a copy of the syllabus he was using, and that his syllabus was markedly different from the one previously used for the course (Tr. 10/22 at 13). Furthermore, his syllabus format was incorrect as it did not include a weekly format which was required so that the College could get formal approval for its BS in Computer Science.

Specifically, Austin faulted Obi for stating that “Formal logic, set theoretic concepts, relations, function and matrices will be introduced as needed in applications” because those areas were required and constituted foundational components of the course. Austin testified that CS 241 was a foundation course and that Obi did not spend enough time introducing certain fundamental topics necessary for students to take more advanced courses and that he omitted core material (formal logic, sets relations & functions). Obi did not adequately cover formal logic and sets & set relations, which was “a very important component in computer science. (Id. at 46).

Austin testified that Harris' modified syllabus was the operative syllabus at the time that Obi was assigned the course. Harris wrote the original syllabus for CS 241 in consultation with City College prior to the existence of the bachelor's degree program and prior to Austin's employment at MEC. After the four year program was implemented at MEC, PECS used a modified version of Harris' syllabus and course description with input from Austin. Austin failed to pinpoint when exactly she or anyone else taught CS 241 prior to 2010. Austin ultimately conceded on cross that Hope gave the syllabus to Obi “towards the end of January 2010,” a few days after the semester had started.

Obi repeatedly asserted that although CS 241 was listed in the Proposal of 2002, it was never taught by anyone until Spring 2010, when he first taught the course. He also testified that he did not change the syllabus, as asserted by Austin, but actually wrote it as this was the first time the course was being taught! Nor did he receive a copy of the syllabus allegedly written by Dr. Harris until sometime in the spring 2010 after he had already starting teaching the course. Although there were still a number of remaining weeks in the course when Obi received Harris' syllabus, Obi never compared his syllabus with Harris' syllabus, and continued to use his own syllabus. He did not know whether a syllabus even existed for CS 241 “but even if there is one it is the professor that teaches the course” and thus writes the syllabus (Tr. 5/29 at 12). Obi then contradicted his testimony by stating that he never saw the purported official syllabus for CS241 until after he commenced the instant case.

While admitting that Harris' syllabus contained different language, Obi testified that his syllabus covered all the required topics mentioned by Austin and that his teaching logs proved that he had taught all the required topics in class. Plaintiff admitted that he constructed his own syllabus and changed language in the course description (Tr. 11/ 19) and that he added things to the course not included in the Proposal (Tr. 5/29 at 10). He also admitted that CS 241 had to meet the core requirements that are recommended by both the ACM and IEEE, the organizations that give curriculum recommendations.

Austin testified that Obi's failure to follow the “official” syllabus and description could endanger articulation agreements that MEC had with other senior CUNY colleges. (Id. at 47). Articulation agreements are the course equivalencies that CUNY provides for transfer of credits from one college to another college (Id. at 47). If the course is not deemed equivalent by other universities, then transferring students will have to take it over again. Articulations of equivalent courses are based on course description and syllabus given to CUNY. The ACM/IEEE Curriculum for Discrete Structures (Def.E) required that Basic Logic be taught for at least 10 hours. Austin testified that at the very least, the minimum content included in a computer course should contain the ACM content. Obi testified that he was not aware of the elements of the Discrete Structures ACM curriculum.

A comparison of the two syllabi confirms Austin's assertions that Obi made changes. The Harris Syllabus (Def.G) contains 15 weekly outlines of which topics would be taught. It devotes the first three weeks to Formal Logic, which includes Statements, Symbolic Representation and Tautologies; Propositional Logic; Quantifiers, Predicates and Validity. Obi's syllabus, which does not contain a week by week outline, never even mentions any of these topics. He also does not include trees and forests, which are covered in the ACM/IEEE curricula and in Harris' Syllabus. While Obi includes probability in his syllabus, he does not cover discrete probability and the sub-topics included therein which are mentioned in the ACM curriculum and covered by Harris. In sum, this court finds that Obi did change the syllabus and that Austin's statement was truthful.

Again, this Court is not charged with either reviewing the record of a disciplinary proceeding brought against Obi or whether MEC violated Obi's right to academic freedom by mandating that he follow the “official” syllabus created by Harris. Whether Obi had some discretion to change the verbiage in the syllabus, whether Austin had any supervisory control over him, or whether Austin was actually inept in not disseminating the “official syllabus” before Obi commenced teaching CS 241 are issues that are ancillary to this Court's determination as to whether Obi “changed” the syllabus. Even were the court to credit Obi's testimony that he did not have to look at a portal to obtain the syllabus and that he did not receive Harris' syllabus until a few weeks after he started teaching CS 241, Obi, by his own admission, still had to include all the topics listed in the Discrete Structures curriculum determined by ACM/IEEE. Upon receipt of the Harris syllabus, Obi was under an obligation to compare his syllabus to Harris' syllabus to ensure that he was covering the same topics and to adjust his own syllabus to make sure that it was in alignment with Harris' syllabus. Obi admitted that he never performed this task. His claim that his logs showed that he taught everything does not mitigate the fact that the syllabi were clearly different and that he changed both the format of the syllabus and the topics required by the ACM curriculum, as listed in the Harris syllabus. Thus, Austin's statement was truthful and nonactionable.

Prerequisites

In her March 29th email, Austin wrote that the prerequisite for CS 241 was CS 151 which included an “implied prerequisite of math 151” and that Obi could not arbitrarily change this. Obi readily admitted that he listed prerequisites in his syllabus for CS 241 that were different from the prerequisites listed in the MEC's course catalog and Proposal. While the MEC Course Catalog and Proposal listed only CS 151 (Introduction to Computing), Obi listed as prerequisites CS 151, Physics 114 and CIS 223 (“Computing Information Science in the School of Business”). He also acknowledged that Dr. Hope had written to Dean Patwary that CS 151 was the prerequisite for CS 241.

Obi explained that he had not “changed” the prerequisites but merely added Physics and CIS 223 so that if students majoring in physics or nursing or business wanted to take CS 241 they would be allowed to “come in” if they had taken those prerequisites. The prerequisite for CS 151, on the other hand, just pertained to computer science majors. He also admitted that any change to a prerequisite for a course has to be done on a departmental level and that no professor has the power to unilaterally change the prerequisites on his own. (Tr. 5/29 at 59–61, 121)

Since plaintiff, by his own testimony, admitted that he listed prerequisites in his syllabus that were different from those contained in the Catalog and Proposal, he by definition changed the prerequisites. As such, Austin's statement was truthful and hence nonactionable.

3) Austin's email that “Dr. Obi has never taught a Computer Science course until this spring [Spring 2010]”

Plaintiff testified that this statement was false, and that he had been teaching computer science classes for years. He taught data communications (CS 275) and telecommunications (TLC 221)(PHS221) although he could not pinpoint or produce any documentation as to when he taught these courses. He testified that Johnson had assigned him these courses between 1995–2003 when he was program chair and that he taught PHS 221 both prior and after 2002. A letter from John A. Gibbs, Chair of PECS during 2006, supporting Obi's application to be full professor in 2006, confirms that Obi taught CS 275 and PHS 221 (Pl.4).

The Introduction to the Proposal indicates that the proposed Bachelor of Science Degree in Computer Science would have three concentrations: General Computer Science, Telecommunications and Computational Science (Proposal at 3). Telecommunications is described as including a range of technologies such as data communications, wireless communications, “computer software and hardware and Internet technologies.” The Telecommunications concentration prepares students “to become highly skilled in theoretical and applied telecommunications.” Id. Under VII, “Curriculum,” the Proposal notes the “interdisciplinary nature of the program (computer science, mathematics, physics, telecommunications ․ )” (p. 8). For general Computer Science and Telecommunication Concentrations, students can choose electives from a variety of computer science and/or telecommunications courses.

Appendix A to the Proposal, entitled “Existing Courses” lists CS 241 as well as TLC/PHS 221 which had as a prerequisite CS 151—Introduction to Computing and Math 151. TLC 221/PHS 221, entitled “Telecommunications Systems” was an introduction to the essentials of telecommunications technology; topics covered included data storage and retrieval, data communications and network connectivity options. This course covered basic computer science topics and involved how computers function. The Existing Courses listed CS 305/TLC 305 “Data Communication” which was designed to provide students with “a fundamental technical and practical background in data communications within the context of network technologies and listed as a prerequisite TLC 221. CS 275 was not listed because it was somewhat duplicative of TLC 221.

The Proposal included seventeen new courses leading to a BS, including three concentrations: General Computer Science, Telecommunications, and Computation Science.The Curriculum listed 10 courses (56 credits) with the denomination of “CS” that must be taken to fulfill the Computer Science Core requirements (none of which were taught by Obi). It then listed the 19 credits which were required to be taken in one of the Three Concentrations. Four specific courses are listed under the Telecommunications Concentration, including TLC/PHS Telecommunications Systems which Obi did teach prior to the Proposal, albeit under the denomination PHS.

The Full Time Faculty listed for The Computer Science Concentrations were Professors Austin, Harris and Stewart, and the Full Time Faculty listed for the “Physics/Telecommunications” concentration were Professors Chow, Johnson and Obi. Obi's resume states that he has a PHD in applied mathematics and that he taught a number of courses including algebra, physics, precalculus and calculus with computers; there is no listing for computer science. Obi testified that Computational Science by definition included the use of computers and it essentially is “numerical analysis with computers.”

As proof that he was qualified to teach, and in fact had previously taught computer science courses, Obi pointed to the Proposal's list of potential computer science courses to be offered as part of the Bachelors Program. Obi's name was listed as principal professor next to CS 241, CS 321, CS 345, CS 390, TLC 221 (cross-listed as PHS 221) and TLC 317. He testified that the department collectively decided who would teach each course so that, for example, it was a collective decision between Professors Austin, Basu and himself that he would teach CS 345—Scientific Programming—which was an introduction to numerical algorithms for scientific computation. Obi claimed that none of these courses were actually scheduled because “he was opposed by Austin” (Id. at 98). Obi also testified that Professor Johnson had assigned him to teach PHS 221 and that either Professors Harris, Johnson or Gibbs had assigned him to teach CS 345.

Johnson confirmed that during his time as chair (1996–2003), he assigned Obi to teach PHS 221, a telecommunications course, and CS 275. Johnson did not consider either of these to be computer science courses. However, he has a background in physics and never taught TLC 221 or any other telecommunications course. CS 275 was also a telecommunications course but had a “CS” prefix because after 2002, PECS faculty decided not to use the TLC designation as “the emphasis was on computer science not telecommunications.” (Id. at 47). In a roundabout way, Johnson contradicted his view that these two courses were not computer science courses by testifying that the same TLC courses were approved by CUNY as part of the computer science bachelor's degree program.

Austin also never asked Obi directly whether he taught a computer science course because she was afraid of confronting Obi. She recounted that Gibbs had assigned her to teach CS 345—Scientific Programming—and that Obi had confronted her in the hallway and started screaming and yelling at her about why he was not assigned to that course. She felt intimidated by him. After this altercation Gibbs told her to be careful dealing with Obi and to stay away from him.

She did not consider any of the courses that Obi had taught to be computer science courses, even though they may have involved some elements of computer science. At the time she sent the email at issue, she was unaware that Obi had previously taught CS 275 Data Communications, was not familiar with the course, and did not know it had even existed! (Tr. 9/11 at 21–22). While she did create an upper level data computer which was part of the BS degree program in computer science, she did not deem it to be a “core course.” While Austin was aware that Obi taught PHS221and was scheduled to teach CS 345, she contended that neither were actual computer science courses. (Tr. 9/11 at 20–23) If PHS 221 were a computer science course it would have been given a “CS” designation. Additionally, it was a low level vocational course for associate degree students and no other computer science department in CUNY accepted it as a computer science course. Austin knew this as she was the MEC person designated for taking those courses and establishing an equivalency across the CUNY system.Yet, Johnson contradicted this statement by testifying, as set forth above, that the same TLC courses were approved by CUNY as part of the computer science bachelor's degree program.

Although Austin actively participated in drafting the Proposal, she was opposed to assigning Obi to teach computer science courses. However, because Obi was giving her a hard time when she was chair, she tried to placate him a little by offering him an opportunity to teach CS 390—a modeling and simulation course which was “not a computer science course per se” (Tr. 9/11 at 18). She specifically told him that said course would not run as a computer science course but rather as an interdisciplinary course that math science and environmental majors might take. Computer science students would not take that course because “the math requirement is so high.” (Id. at 19). She elaborated that a computer science major course is one that is accepted by other CUNY colleges with BS degree programs in computer science. She denominated as “surface” those computer science courses offered by MEC that don't necessarily have equivalency in other schools. In contrast, “core” or “major” computer science courses are those required for a computer science major to transfer to BS degree programs in computer science.

Based upon the above, the Court finds that Austin's statement that Obi never taught a computer science course was false. While it appears that CS 275 was never mentioned after 2002, the Proposal and other documents consistently listed TLC 221/PHS 221. Austin's rationale for her comment—that she did not consider CS 305 and TLC 221/PHS 221 to constitute real or core computer science classes and/or that physics professors could not teach computer science because of a 2007 City College policy—merely clouds the issue. The Court must assess the truth or falsity of Austin's statement from the vantage point of the average reader; not from the ivory tower of academia where a speaker's interpretation of her statement may be jaded due to her heightened protectiveness over the academic purity of a program. In fact, towards the end of her cross examination, Austin admitted that the discretion to assign courses ultimately lies with the Chairman of PECS and that there is no rule that prohibits teachers other than those tenured in computer science from teaching computer science courses.

Austin has had a prominent career as a Computer Science Professor and started teaching at PECs as a full time faculty member in 2001. Moreover, she actually worked on the Proposal with Johnson and other faculty (including Obi) and gave an exacting description of the process for obtaining CUNY approval of the MEC computer science BS program. She was thus fully aware of its contents and in fact voted to approve the Proposal listing Obi to teach a number of computer science courses. (Tr. 9/12 at 50–52). The Proposal listed TLC 221/PHS 221 as an existing course and, going forward, as a required course in the Telecommunications Concentration, which was one of three equal concentrations for a computer science degree. To testify that PHS 221 was not a computer class because it was listed under the Telecommunications Concentration is tantamount to disavowing one of the major components of the Computer Science curriculum. However, as well be set forth, Austin's statement was protected by a common interest privilege and plaintiff has failed to prove that her statement rose to the required level of actual malice.

Qualified Privilege and Actual Malice

Even when defamatory statements are made, they may be protected by a qualified privilege which arises when a communication is made to persons having some common interest in the subject matter. Ives v. Guildord Mills, 3 F.Supp.2d 191, 200 (N.D.NY 1998); Foster v. Churchill, supra, 87 N.Y.2d at 751. This “common interest” privilege applies not only when there is a common interest but also when a speaker makes “statements upon a subject in which the speaker has some legal, moral, or social duty to speak and the communication is made to a person having such a corresponding interest or duty.” Ives, supra, 3 F.Supp.2d at 201. See, Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145, 146 (2d Cir.2001); Cusimano v. United Health Servs. Hosps., Inc., 91 AD3d 1149, 1150 (3rd Dep't 2012). In New York, a qualified privilege generally immunizes from defamation claims communications made within the employment context. Albert v. Loksen, 239 F.3d 256, 272 (2d Cir.2001); Donofrio–Ferrezza, supra, 2005 U.S. Dis. LEXIS 21103 at 18–19.

This privilege has been applied to communications within a firm concerning the actions of its employees. Liberman, supra, 80 N.Y.2d at 437. See, Meloff v. N.Y. Life Insur., supra, 240 F.3d at 145 (since allegations arose in context of employment, regarded an employee and were distributed only to other employees, qualified privilege applied); Slue v. NYU Med. Ctr., 409 F.Supp.2d 349 (S.D.NY 2006) (discussions amongst faculty members in a department in medical school about the plaintiff's allegedly inappropriate conduct and termination protected by privilege); Cusimano, supra, 91 AD3d 1149 (statements made by employees of medical facility to co-employees, all of whom were collectively responsible for the functioning and proper operation of facility, protected). See, Chandok v. Klessig, 632 F.3d 803 (2d Cir.2011) (emails by senior scientists to fellow scientists at Cornell who shared his interested in NOS research concerning his inability to produce plaintiff's research results and his suspicion that plaintiff had falsified his results included within privilege).

Here, it is clear that Austin's statement that Obi never taught a computer course is protected by this qualified common interest privilege as it involves a communication between professors within the academic community of MEC, and specifically amongst the SSHT faculty.A review of the chain of emails reveals the statement at issue emanated from an email that Austin sent to Moshin Patwari, Dean of the School of Science, as well as Wilbert Hope, Dr. Johnson, Dr. Howard Johnson (Provost of MEC) and Dr. Harris informing them of the good news that three MEC computer science graduates had earned masters degrees at CCNY (Cts.1). On May 10th, Patwary forwarded Austin's email with the term “Congratulations—good news for CS program”—to Austin, Howard Johnson, provost of the MEC, and the SSHT faculty (entire faculty in the school of science). In response to this email, Obi sent an email dated May 11, 2010 to the same groups of individuals stating that “while every good news should be celebrated,” only about five to eight percent of the enrolled students in the CS program graduated. Obi attributed this low number to the fact that required courses were not offered and “only a track was arbitrarily and preferentially offered.” (Cts.2). A series of emails between Austin Harris and Obi to the same groups ultimately resulted in Austin's email dated May 17th which included her statement that Obi had never taught a computer science course. As such, Austin never punctured the common interest privilege in her communications to the SSHT team. Rather the SSHT team was first included in this email chain by Dean Patwari.

To “puncture” the qualified privilege and establish liability, the plaintiff must prove that the defendant made untrue statements, and abused the privilege by either acting outside the scope of the privilege or acting with either common law or constitutional malice. Liberman v. Gelstein, 80 N.Y.2d 429, 438 (1992). See, Boyd v. Nationwide Mutual Ins. Co., 208 F.3d 406, 410 (2d Cir.2000); Slue, supra, 409 F.Supp.2d at 367; Donofrio–Ferrezza, supra, 2005 U.S. Dis. LEXIS 21103 at 20; Landon v. Kroll Lab Specialists, Inc., 22 NY3d 1(2013). Acting beyond the scope of the privilege occurs where the defendant does not exercise the privilege in a reasonable manner, abuses the occasion, or makes the statement “in furtherance of an improper purpose.” Boyd, supra, 208 F.3d at 410. In New York, a plaintiff need only prove malice by a preponderance of evidence to defeat the qualified privilege. Chandok, supra, 632 F.3d at 816; Albert v. Loksen, 239 F.3d 256, 276 (2d Cir.2001). The critical difference between common law and constitutional malice is that the former focuses on the defendant's attitude towards plaintiff whereas the latter focuses on the “defendant's attitude towards the truth.” Chandok, supra, 632 F.3d at 815.

Common-law malice requires an evil intent arising from ill-will or spite. Fuji Photo Film USA, Inc. v. McNulty, 669 F.Supp. Ed 405, 412 (S.D. N.Y.2009); Liberman v. Gelstein, supra, 80 N.Y.2d at 438. To defeat the qualified privilege, a plaintiff must demonstrate that the defendant's ill will was the “one and only cause for the publication.” Albert v. Loksen, supra, 239 F.3d at 272 (2d Cir.2001); Ello v. Singh, 531 F Supp.2d 552, 576–577 (S.D. N.Y.2007); Cusimano, supra, at 1150; Curren v. Carbonic Sys., Inc., 58 AD3d 1104, 1107 (3d Dep't 2009), and that the defendant's statement was solely motivated by a desire to injure the plaintiff. Bernacchi v. Cty of Suffolk, 118 AD3d 931 (2d Dep't 2014), Present v. Avon Products, Inc. 253 A.D.2d 183 (1st Dept.1999); Brooks v. Anderson, 2007 N.Y. Slip Op. 52482U, 18 Misc.3d 1109(a) (Sup.Ct. Bronx Cty.2007). Spite or will-will does not refer to the defendant's general feelings or personal feelings about the plaintiff, but rather to the speaker's motivation for making the defamatory statements. Lieberman, supra, 80 N.Y.2d at 439; Cusimano supra, 91 AD3d at 1151. As long as the defendant made the statement to further the interest that was protected by the privilege, it does not matter that the defendant also despised the plaintiff. Cusimano, supra at 1151; Nyitray v. Johnson, 1998 U.S. Dist. LEXIS 1791 (S.D.NY 1998) at 12. See, Vilien v. Dept of Educ., City of NY, 2009 U.S. LEXIS 27468 at 24 (S.D.NY 2009) (Where statement made to further the the candid exchange of the employers' opinion about the employee's performance, “the defendant's opinion of the plaintiff is of no importance.”); Nyitray, supra (A defendant may be found to harbor ill will against a plaintiff, based upon the barrage of allegations that he was forced to endure, at the time he wrote the letter. However, such general ill will does not, in and of itself, rise to the level of common law malice).

Furthermore, evidence of prior disputes or prior dislike is not evidence of malice, and a plaintiff cannot rely upon mere conclusory allegations or charges based upon suspicion, surmise and conjecture. Ratajack v. Brewster Fire Dep't Inc., 178 F.Supp.3d 118, 162 (S.D. N.Y.2016); Donofrio–Ferrezza, supra, 2005 U.S. Dis. LEXIS 21103 at 21 citing to Shapiro v. Health Ins. Plan of Greater NY, 7 N.Y.2d 56, 64 (1959); Cusimano, supra, 91 AD3d at 1151. Similarly, the hostile tone of the encounter does not obviate the need to prove that defendant was motivated solely by ill will or spite in making the false statement. Grier v. Johnson, 232 A.D.2d 846 (3rd Dept.1996). Finally, in order to determine whether ill will was the sole motive for the defamatory statement, a court may look to the entire record before it, not only the sentence that was uttered. See, Albert v. Loksen, supra, where the Second Circuit found that the record created a genuine issue of material fact as to whether the defendant made false and defamatory statements solely to prevent the plaintiff from reporting defendant's own misconduct. 239 F.3d at 273. The evidence revealed that the defendant had a motive to defame the plaintiff in order to prevent him from revealing the unsafe conditions at the hospital and the fact that the defendant was performing other jobs, sometimes with the use of hospital equipment, during working hours. The court found that such evidence, if believed by a jury, could support a finding that the defendant acted with common-law malice. Id.

Constitutional malice, a/k/a “actual malice,” requires a showing that the speaker either knew that the statement was false or made it with a reckless disregard as to whether it was true. Nyitray, supra, 1998 U.S. Dist. LEXIS 1791 (S.D.NY 1998) at 25; Liberman, supra 80 N.Y.2d at 438 citing to N.Y. Times v. Sullivan, 376 U.S. 254, 279–80 (1964); Cusimano, supra, 91 AD3d at 1151. See, Landon v. Kroll, supra, NY3d at 12; Smith v. Montefiore Med. Ctr, 116 AD3d 573 (1st Dept.2014); Diorio v. Ossining U.F.S.D. 96 AD3d 710 (2d Dep't.2012). Under the constitutional standard, the plaintiff must demonstrate that defendant made the statements with a “high degree of awareness of their probable falsity,” Liberman, supra, 80 N.Y.2d at 438 citing to Garrison v. Louisiana, 379 U.S. 64, 74 (1964) or that the defendant entertained “serious doubts as to the truth of [the] publication.” Id. See, Slue, supra, 409 F.Supp.2d at 367; Donofrio–Ferrezza, supra, 2005 U.S. Dis. LEXIS 21103 at 20–21; Stega v. N.Y. Downtown Hospital, 2014 N.Y. Slip OP 32409U, 2014 N.Y. Mis. LEXIS 4125 at 19 (Sup, Ct., N.Y. Co.2014). The Liberman court emphasized that there is a “critical difference between not knowing whether something is true and being highly aware that a statement is probably false. 80 N.Y.2d at 432. Mere falsity is not sufficient to establish actual malice, Ratajack, supra, 178 F.Supp.3d at 162, although “malice may be inferred from a statement that is so extravagant in its denunciations or so vituperative in its character ․” Smith v. Montefiore Med. Ctr., 116 AD3d 573 (1st Dep't 2014).

“A defendant's failure to investigate the truth of the statements alone does not permit a finding of constitutional malice, even if a prudent person would have investigated.” Boyd v. Nationwide Mut. Ins. Co., 208 F.3d 406, 408 (2d Cir.2000) (citing Harte–Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666–67, 105 L.Ed.2d 562 (1989)); Brattis v. Rainbow Advertising Holdings, LLC, 2000 U.S. Dist. LEXIS 7345 (S.D.NY 2000); Sweeney v. Prisoners' Legal Servs. 84 N.Y.2d 786 (1995); Berger v. Temple Beth–El of Great Neck, 41 AD3d 626, 627 (2d Dep't 2007). Thus, “mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth.” Gertz, supra, 418 U.S. at 332. A defendant's reliance on a responsible source negates a finding of “the recklessness that is required for a finding of actual malice.” NY Times, supra, 376 U.S. at 287–88; Dongguk Univ. v. Yale Univ., 734 F.3d 113, 124 (2d Cir.2013); Miller v. News Syndicate Co., 445 F.2d 356, 358 (2d Cir.1971). However, actual malice can be inferred from objective facts since it would be rare for a defendant to ever admit that he entertained serious doubts as to the truth of the statement. Celle v. Filipinio, supra, 209 F.3d at 183 citing to Bose Corp. v. Consumers Union, 692 F.2d 189, 196 (1St Cir.1982).

Therefore, in analyzing whether ill will was the sole motivating force behind Austin's statement that Obi's never teaching a computer course, this court may look to the entire email thread and testimony about this thread.

Austin testified at length as to why she wrote the email on May 17th criticizing Obi's teaching of CS 241 and stating that “Dr. Obi has never taught a Computer Science course until this Spring.” As set forth above, this statement stems from Austin's initial email to Dean Patwary, Dean of the School of Science (with cc's to Hope, Johnson and the “Harris team”). Austin testified that in his May 11, 2010 email “Obi criticized my handling of the Computer Science program” and “made that criticism to all of the people that Dean Patwary sent that email to,” which caused her to write her response (Tr. 9/11 at 8). By email dated May 11th, Austin responded that Obi's comments were not quite accurate and proceeded to explain why the graduation rates were low, including the correlation between math skills and success in computer science and the fact that only 50% of declared computer science majors survive basic algebra.

In response to this email, Obi, by email dated May 16th, wrote that “the secret is out” that both Drs. Harris and Austin are “driving students away from the CS program by misdirecting and forcing them to take and pay for credits that are not required.” He then proceeded to attack Austin's scheduling of an evaluation and observation of his CS 241 class and stated that both Austin and Harris had created “a crisis” in scheduling in CS 241 which resulted in only a few students registering for the class. He challenged the need for him to acquire additional certifications since “the course contents of CS 241 are in my area of speciality.” He also stated that Austin and Harris placed themselves above the requirements set for other professors and that he did not recall Austin ever teaching a single regular course as a full time instructor in PECS.

In response to this email, Austin wrote her infamous statement on May 17th that Dr. Obi's comments were once again inaccurate, that he did not understand the math prerequisite sequence, and that he never taught a computer science class until spring of 2017. In analyzing whether Austin made this statement with the requisite ill will or spite, it is salient to note that the statement was included in the same email where Austin accused Obi of changing the course description, syllabus and prerequisites, which accusation had previously been included in Austin's email of March 29th and which this Court has already found to be true.

Austin testified that the email threads show that “Dr Obi attacked me and—I responded with the things that he didn't do in CS 241.” (Tr. 9/12 at 103) She continued that “it was his personal attack on me, the Provost, the Dean and the entire school, and I responded in kind.” (Id. at 104). In response to question from the Court as to whether she would have written this email had there not been a stream of emails concerning the students graduating and what she believed to be an attack to her, Austin responded that had Obi not responded to her email concerning the kids graduating and attacked her, she would not have sent another email although she would not have let the matter rest. (Tr. 9/12 at 104)

It should also be noted that at the end of the May 17th email, Austin wrote that Obi had omitted required material for the course, which endangered the articulation agreements that MEC had with other senior CUNY Colleges. As set forth previously, Austin testified that Obi's failure to follow the “official” syllabus and description could endanger matriculation agreements that MEC had with other senior CUNY colleges. (Id. at 47). It was important that MEC get its BS Computer Science Program right so that it would follow the ACM/IEEE standard curriculum for computer science, which would allow students to transfer from one institution to another. She was concerned that if other colleges saw that PECS was not following the agreed upon standard exchange syllabus, that CS 241 would no longer be deemed to be equivalent to other computer science courses taught at other CUNY colleges, and students could not transfer credits. Finally, Professor Hope, in his deposition, corroborated how important the success of PECS was to Austin. (Def.I) The computer science program at MEC was new and Austin, Johnson and Harris were trying to give students practical experience at the graduate level and carve out some kind of “special niche” for the program. (Def. I at 84–85) Austin's specialization was in computer science and she was a stakeholder when it came to computer science program, which was “her baby.” (Id. at 85).

In sum, Austin's statement must be analyzed within the context of both the entire May 17th email and the email chain that was initiated when Austin initially congratulated the CS program for enabling three students to earn masters degrees at CCNY. Austin's devotion to and or protection of the computer science program at MECS revealed itself in this thread and thus constituted one reason for her false statement that Obi never taught a computer science class. This fact negates any argument that the sole motivating cause for Austin having made this untrue statement was ill will or spite. As such, plaintiff has not proven common law malice so as to over come the qualified privilege.

Similarly, plaintiff has failed to prove constitutional malice. The testimony reveals that Austin did not entertain serious doubts about the truth of her statement that Obi had never taught a computer science class or that she made said statement with a high degree of awareness of its probably falsity. Austin justified this statement based upon the fact that since her arrival at MEC in 2001, she had never observed Obi teaching a computer science course, and she was unaware that he had ever taught a computer science course prior to that time. Upon her arrival at MEC, the Chair Johnson told her that Obi was assigned to the physics program. Furthermore, Obi's CV did not mention that he taught computer science, but rather physics and math: “I believe it to be true because when we submitted the BS [Bachelor of Science] degree proposal in Computer Science, Obi identified himself as a math and physics professor for one,” and there was no computer science course on the list of courses that he had taught (Tr. 10/22 at 23–24). She believed that physics teachers should not or do not teach computer science based upon the 2007 decision of the City College Computer Science Department barring physics teachers from henceforth teaching computer science courses. She did not question what Johnson had told her and did not think it necessary to survey the other chairs about Obi's status as a computer science teacher. Austin stated that she was under no duty to comb through MEC records and archives before making a statement about Obi's teaching history which she had sufficient and reasonable basis to believe was accurate.

The case law clearly establishes that Austin was not obligated to conduct an investigation of files on OBI or second guess her chairman's statement that Obi taught physics, which she took to mean that he did not teach computer science courses before stating that Obi had not taught a computer class. Plaintiff failed to rebut the reasons asserted by Austin to justify her belief that Obi had not taught a computer science course. In sum, plaintiff failed to proof that Austin made this statement in reckless regard of the truth.

Having failed to prove that Austin's false statement that Obi never taught a computer science class rose to the level of either common law or actual malice, plaintiff cannot prevail and this case must be dismissed. This constitutes the decision and order of the court.

FOOTNOTES

1.  Hereinafter all of plaintiff's, defendants' and court exhibits will be referred to as (“Pl.”, “Def.”, or “Ct.” followed by page number

2.  Since, as will be set forth below, the Hon. David Vaughan court granted summary judgment to defendant on all causes of action save for defamation, this opinion will not address either plaintiff's or defendants' arguments on these claims.

3.  Justice Vaughan's decision will be referred to as “Dec” followed by page number.

4.  Plaintiff voluntarily withdrew his causes of action for negligent interference with business contract, conspiracy and punitive damages.

5.  Since Justice Vaughan granted summary judgment to defendants on all the other claims, the only defendants remaining at the time of trial were Austin and Johnson.

KATHERINE A. LEVINE, J.

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