You may recall an event in Central Park in mid-2020 that involved a woman who called the police when she encountered a birdwatcher. The birdwatcher was Black. The woman was white. Video of the incident went viral. I’ll spare you the link, but it’s still available (isn’t everything) with a quick search of “Central Park Karen,” as the incident became known.
Amy Cooper was walking with her dog off leash in the Bramble, which is against Park rules. There was an exchange of words with the birdwatcher, culminating in Cooper telling the birdwatcher she would call the police, while saying: “I’m going to tell them there is an African American man threatening my life.”
What happened next? Cooper worked for Franklin Templeton. After the video went viral, she was fired. The company tweeted “Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton.”
Cooper sued Franklin Templeton arguing the financial services company unfairly fired her and called her a “racist.” Her complaint included claims of, among other things, race discrimination and defamation. The district court dismissed the complaint in September 2022. Cooper v. Franklin Templeton, et al., 2022 U.S. Dist. LEXIS 170820 (S.D.N.Y. Sep. 21, 2022).
Cooper appealed. Oral argument was held in the Second Circuit last Friday, May 19, 2023, before Judges Pooler, Parker and Nathan. It does not seem likely Ms. Cooper will prevail if the tea leaves in court are any indication.
The company had said it needed to review the video to ensure that it had not been fabricated or otherwise manipulated. It was not. And, as Judge Parker noted it was an “eye-popper.”
Her lawyer argued that Cooper’s defamation claims should survive because the company’s statement made it sound like the company “had facts unknown to the public” and “used those facts to make the determination that Ms. Cooper was a racist.” But the judges pointed out that an accusation of racism is not actionable as a violation of law in New York. It’s a statement of opinion that cannot be defamatory.
When her attorney again characterized the company’s statements as “declaring that Ms. Cooper was a racist,” Judge Parker asked “Where did they say she was a racist? They said we do not tolerate racism. That’s different.”
As for Cooper’s discrimination claims, Judge Nathan noted binding precedent holding that “racism is not a race and discrimination on the basis of alleged racism is not the same as discrimination on the basis of race.” Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 87 (2d Cir. 2013).
When Cooper’s attorney pointed to examples of other employees who he claimed were not discharged for bad conduct, Judge Parker responded that “none of your comparators was caught on film, and none of your comparators had a 911 call saying there’s a Black man in Central Park threatening my life.”
Near the end of the argument, Cooper’s lawyer claimed that it was social media and the company that injected race into the matter. Judge Pooler responded that Cooper “introduced race into the topic. She could have said there’s a man who’s threatening me but she did not.”
The lawyer said: “She didn’t know what she was doing. She’s a victim.” The comment reminded me of the old law school saw of the child who murdered his parents and threw himself on the mercy of the court because he was an orphan.
The takeaway? Employers still have the right – after determining the truth of alleged employee misbehavior at or outside of work – to take disciplinary action against the employee. The world of social media has made events become notorious that, in simpler times, may have gone unnoticed. It’s a good reminder to be on good behavior in your interactions with other humans.