Stalking Allegations, Defamation, Malicious Prosecution, and Professors, with a Trans Angle

[1.] From New York trial court judge Dakota Ramseur’s opinion in Duncan v. Dick Blick Holdings, Inc., decided Jan. 21 but just posted on Westlaw (for more on the trans dimension, see item 4 below):

In July 2023, plaintiff Dustin Duncan commenced this defamation action against defendants Dick Blick Holdings, Inc. …, and Sawyer Allen, a/k/a Sawyer Quinn … related to various social media posts Allen made while employed by Blick that accused plaintiff of stalking and harassing him….

According to his first amended complaint, plaintiff is a professor of epidemiology at Columbia University whose fields of research focus on the intersectionality of health equity and black gay, bisexual, and other marginalized communities. In April 2023, he visited Harlem Dick Blick Store, a local art supplier near his campus, and placed an order to have certain works of art framed. Plaintiff first met Allen, an employee of Harlem Blick, while placing this order. During their interaction, Allen requested plaintiff’s Instagram handle, which he provided, and both communicated with each other through the app for a period of a few weeks.

On or around June 9, 2023, plaintiff returned to the Harlem Dick Blick to pick up the framed artwork, at which time a manager approached him and stated that he would not be able to have additional artwork framed at their store. The manager explained, in front of other customers, that an unnamed employee had made accusations that he had been harassing or stalking them and that he would not be permitted to visit the store as pretext to engage in further harassment. Thereafter, on June 23, 2023, Allen posted the accusations of harassment to his Instagram account next to plaintiff’s professional Columbia University photograph. The post’s caption reads:

“I need help!! This man has been stalking & harassing me for nearly three weeks now. He was a customer that came into my job to get some of his artwork framed …. since that day he would come to the store asking for me. After he picked up his artwork, they banned him from coming back to the store. Since then he has been messaging me nonstop! I have already blocked him off four accounts. I tried getting an order of protection, but they denied it. Because he hasn’t done any physical harm to me [sic] … [T]his man needs to be stopped!! #columbia university.”

The post is accompanied by screenshots of messages purportedly sent from plaintiff that promise to continue the harassment unless Allen speaks to him. {The allegedly fake messages include, among others, “Harassment? Lol you have no idea what it would look like if I was harassing you. You may get the cops involved, but how is that going to stop me from messaging you … I don’t plan on stopping until you meet up with me in person and we talk,” “You can continue to block me its not hard for me to make another account and you are going to hear me out,” and “I know exactly where you live as well[.] You don’t even what I need to talk to you about [sic] and I’m sure once you hear me out you will have a better understanding to all of this.”} According to the complaint, however, the messages were sent from an Instagram account with the username @d.d_can, an account which, as reveal through a subpoena issued to Meta (Instagram’s parent company), was created using Allen’s phone number (and the same number that is attached to the Instagram account that Allen originally gave plaintiff when they first met). Screenshots of what appears to be Allen’s Facebook profile reveal that he posted the same allegations on that platform as well, including one that tagged Columbia University, and that he created a Go Fund Me page entitled “Columbia University professor harassment, organized by Sawyer Allen.”

Plaintiff further alleges that Allen contacted Columbia University on June 28, 2023, and filed a complaint with the school, which prompted it to open a formal investigation. Through Columbia’s investigation, plaintiff learned that Allen accused him of “following him on the subway on more than one occasion while wielding a knife, including on the L train to Brooklyn” on June 15, 2023, and of “lurking, walking by, and/or standing on the driveway of his home on or about June 24, June 25, and June 27, 2023.” Plaintiff denies each of these allegations. Further, according to its determination letter, Columbia’s investigation “did not find, by a preponderance of the evidence standard, that you [plaintiff] engaged in conduct amounting to sexual harassment, stalking, and discriminatory harassment … Based on the investigation, [The Office of Equal Opportunity and Affirmative Action] did not find Complainant’s allegations to be supported by the evidence.”

Plaintiff’s causes of action are for (1) defamation per se against both Allen and Dick Blick, as his employer, (2) negligent supervision and retention against Dick Blick, (3) intentional infliction of emotional distress against Allen, and (4) negligent infliction of emotional distress against both defendants. In addition, … plaintiff seeks to interpose a second amended complaint and assert a cause of action for malicious prosecution against Allen. This claim is premised on Allen filing false police reports that resulted in a grand jury indictment [of Duncan] and his arrest on September 18, 2023. The indictment was ultimately dismissed on March 7, 2024….

[2.] The court rejected plaintiff’s claims against Dick Blick (though my sense is that in some other states, the respondeat superior theory might have been viable):

Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were “generally foreseeable and a natural incident of employment.” … Where an employee’s actions do not further the employer’s interest or are not necessary to carrying out duties incumbent on them, or where the employee’s actions are taken for wholly personal reasons unrelated to their job, vicarious liability cannot attach.

Here, plaintiff alleges that Allen, in sum and substance, falsely claimed—to Dick Blick no less—that he had engaged in a serious criminal conduct by harassing and stalking him, that Allen publicly posted to Instagram these false allegation, with screenshot that made it appear as though plaintiff was continuing to engage in the harassment, and then Allen filed a complaint with Columbia University, accusing him of stalking him with a knife. These factual allegations—that Allen, for reasons unknown, “waged a campaign of harassment and defamation” against him—do not contain a nexus to any purported employment-related duties that he may have had at Dick Blick….

[P]laintiff has not explained to the Court how Allen’s conduct could theoretically come within the ambit of his job duties. As Dick Blick argues, if Allen defamed plaintiff to his manager or management in general by making the false accusations he did and Dick Blick, on this basis, refused his future business, Dick Blick’s interest could not have been served by Allen’s conduct…. Nor does the fact that Allen allegedly sent fake messages during business hours support the conclusion that Allen’s actions were within the scope of his employment….

[As to] plaintiff’s second cause of action for negligent supervision and retention …[, such claims require] allegations that the employer knew of its employee’s harmful propensities, that it failed to take necessary action, and that this failure caused damage to others. Here, as defendants contend, plaintiff’s complaint is devoid of allegations as to how Dick Blick, from Allen’s previous conduct, knew or should have known about a propensity to defame or make false accusations against customers to its management. Plaintiff’s opposition only highlights this defect. He argues that Dick Blick knew or should have known about Allen’s “propensity to misuse social media and Go Fund Me sites,” but his complaint does not identify previous instances in which Allen misused social media in a way comparable to the allegations made here….

{The Court is cognizant of the fact that the rather typical negligent supervision claim concerns an employee who engages in an act of violence. It is also cognizant that it may be more difficult to discern when an employer is put on notice of an employee’s propensity to engage in defamation than it would be for a propensity toward violence. Like here, this is because, to be on notice of the propensity for the tortious conduct at issue, i.e., the defamation, the employer must have some sort of awareness as to the truth of employee’s statements, statements that may have been made outside the confines of the employer’s premises and through social media to other third-parties. Here, assuming that plaintiff put Dick Blick on notice that he considered the allegations Allen made to be false, there was no evidence put forward to dispute Allen’s statements at that time.}

[3.] The court, however, allowed plaintiff’s defamation claim to go forward against Allen (though it rejected the infliction of emotional distress claims as duplicative of the defamation claim). And the court allowed plaintiff to amend his complaint to add a malicious prosecution complaint against Allen “based on alleged false reports he made to police that subsequently led to plaintiff’s arrest and indictment”:

[I]n providing false evidence to the police or withholding evidence that might affect the determination by the police, a defendant may be said to have initiated a criminal proceeding [for purposes of a malicious prosecution claim].

Here, taking the allegations as true, plaintiff alleges that Allen did not “merely report” a crime, but invented one. His complaint details that Allen reported to police that plaintiff “displayed a knife” and stated, “just listen to me or else” on June 14, 2023—a date in which, according to plaintiff, he was traveling outside New York. He further alleges that Allen provided police with the messages from his own fake Instagram account, in which he pretended to be plaintiff. Those messages include, “I hate this saying. But you can run, but you can’t hide for long,” “Eventually you are going to have to face me. Whether it’s in court or in person. And I am not worried about court,” “Drop the investigation or else. Do you care about your family’s lives,” and “Good morning, I need you to drop this investigation now! I don’t need to follow you to know where you are. But trust me. If you don’t drop this investigation, this won’t end well on your end.”

According to the complaint, one of the charges returned by the Grand Jury include intimidating a victim or witness. It strains credulity to suggest, as defendants appear to, that defendant’s alleged false evidence was not made “with malice” and “did not contribute to the determination to arrest plaintiff.” At this juncture, plaintiff has sufficiently pled a cause of action for malicious prosecution….

[4.] The underlying dispute also produced another pending libel suit, Duncan v. Lett (E.D. Pa.), which Duncan filed against another professor, Elle Lett, who publicly supported Allen’s accusations. Here’s the Preliminary Statement from Lett’s pending motion for summary judgment:

In this action, Dr. Dustin Duncan (“Plaintiff” or “Dr. Duncan”) accuses Dr. Elle Lett (“Defendant” or “Dr. Lett”) of defamation per se for publicly supporting a fellow member of the Transgender community who alleged Dr. Duncan harassed him across various social media platforms. {Dr. Lett is a Black Transgender (“Trans”) woman, University of Pennsylvania Physician and Statistician-Epidemiologist, notable LGBTQ scholar and outspoken advocate for the rights of marginalized persons, particularly the Trans community.} However, the law does not permit liability for defamation per se when Dr. Lett was, at all times, acting to support someone genuinely believed by many members of the LGBTQIA and academic public health communities (with Plaintiff’s employees) to be the victim of harassment. Pennsylvania (“PA”) and New York (“NY”) law protect Dr. Lett’s speech from liability.

This SJM should be granted on ten bases: 1) Dr. Lett’s speech is protected by PA’s anti-SLAPP law; 2) if PA’s anti-SLAPP law does not apply, NY Law governs this action and 3) NY anti-SLAPP applies; 4) the public interest privilege protects Dr. Lett’s speech; 5) Plaintiff is a public figure; 6) as a public figure, Plaintiff must demonstrate actual malice by clear and convincing evidence in Dr. Lett’s speech—there is no such evidence; 7) Dr. Lett’s private messages to colleagues are protected by the common interest privilege; 8) Dr. Lett’s commentary on “X” (Twitter) are non-actionable opinions so this claim cannot be sustained; 9) even if these statements were actionable, Plaintiff must still demonstrate actual malice—there is none; 10) Dr. Lett is owed attorney’s fees.

(Note that Judge Kelley Hodge, who is presiding over Duncan v. Lett, held in July that the anti-SLAPP statutes don’t apply.)

And here’s an excerpt from the Preliminary Statement from Duncan’s pending motion for summary judgment:

The gravamen of Defendant’s defense in this case has been the insistence that Defendant made public statements about Professor Duncan with a belief that Defendant was courageously standing up for Sawyer against Professor Duncan. (Def. 3rd SJ Dkt. # 67 at 3 (“When confronted with these alarming accusations, [Defendant], for the sake of professional and financial gain, could have done the much easier thing: remain silent. Instead, [Defendant] mustered the courage to stand against a well-known colleague by publicly supporting [Sawyer] who [Defendant] believed was harmed.”).) Defendant’s rhetoric is wholly insufficient to avoid liability.

No defendant in a defamation case can “insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith…. [R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” St. Amant v. Thompson (1968). The undisputed factual record demonstrates: (1) Defendant acknowledged having a long-standing ill will toward Professor Duncan; (2) within a few hours of learning about Sawyer’s accusations about Professor Duncan, Defendant leapt on them uncritically, republishing and amplifying them to, inter alia, professional colleagues of Professor Duncan and purposefully avoiding an opportunity to verify any of Sawyer’s accusations with Sawyer directly; (3) when Defendant was presented with verified facts in the NYS Complaint in July 2023, Defendant understood that they disputed key aspects of Sawyer’s story but made the choice to disregard those facts; (4) only when Defendant was sued in this case—and confronted with the possibility of facing real consequences—did Defendant acknowledge that Sawyer had indeed fabricated claims against Professor Duncan. This factual background is dispositive here. Professor Duncan respectfully submits that this Court can and should determine as a matter of law that the Defendant’s statements are defamatory per se.