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Friday, August 18, 2006

Former College DJ's Defamation Action Against College, Employee May Proceed

Jason Antebi attended Occidental College from 2000 to 2004, and while there worked at the college radio station where he had a "shock jock" program. He also served on the college's student council. According to the ruling filed August 15 by the California Court of Appeal, Second District, some students disliked him and "[t]hree of them published statements that he was a racist and an anti-Semitic, and that he sexually harassed women. He reported the acts of these three students to Frank Ayala, the dean of students, and Sandra Cooper, the Occidental general counsel. Ayala and Cooper dismissed his complaint because the actions by the other students did not constitute harassment or defamation. They told him to `fight [his] own battles.'"

Accordingly, Antebi began to use his own radio show to do so. In March of 2004, "he made insulting comments attacking satirical characters based on these students and others...Within two weeks, the three students filed separate sexual harassment complaints against him based on his on-the-air statements. By then, Ayala had removed Antebi from the show."

The college began an investigation of Antebi's remarks and behavior, including allegations that "Antebi had threatened physical violence and retribution in e-mails to the gay community, and that he had defaced brochures with terms derogatory toward women. On March 22, 2004, as Cooper stood in an office at Occidental, she yelled into a public hallway at Antebi that he was a "racist." "sexist," "misogynist," "anti-Semite," "homophobe," "unethical" and "immoral" "trash." Numerous persons heard the comments."

In April the campus' Title IX officer submitted a report on the incidents. She "concluded that Antebi's March 11 program violated Occidental's policy against hostile environment and sexual and gender harassment. She recommended that Antebi apologize to the conmplainants, or to the Occidental community, and suggested that he seek counseling." Ayala agreed and told Antebi to comply or face "alternative discplinary action." Antebi refused and appealed. He lost the appeal. Antebi appealed further. The appellate court notes that "[t]here is not information in the record about the outcome of this appeal."

In March 2005, Antebi sued in superior court. The trial "sustained the demurrer [of Occidental College, the Board of Trustees, Ayala, the Title IX officer, and other employees] without leave to amend because Antebi had not exhausted his internal remedies and, even if he had done so, his exclusive remedy was by administrative mandamus." Antebi appealed on grounds of "(1)defamation; (2)violation of Civil Code section 51 and 52.1; (3) invasion of privacy; (4) intentional infliction of emotional distress; (5) negligence; (6) breach of fiduciary duties; and (7) declaratory relief under California's Leonard law (Ed. Code, [sec] 94367 et seq.).".

Reviewing de novo, the appellate court ultimately agreed with the trial court that Antebi had not exhausted his administrative remedies. However, it distinguished the defamation claim. "Although the statements were made during the period of the discplinary investigation, they were not a part of the administrative procedure. As we explain, Antebi has pleaded a cause of action for defamation, but not for intentional or negligent infliction of emotional distress. In Antebi's first amended complaint, he alleged that...Cooper yelled...at Mr. Antebi.....These words were published to numerous persons.....If the statement is unambiguous, a pleadings needs only an allegation that the statement was made in the presence of third persons. Antebi's allegation meets this test. Cooper's alleged statement was unambiguously defamatory and was made in the presence of other people in a public hallway. Respondents content that Antebi, as a public figures, must make a showing of malice by Cooper.....Assuming that Antebi is at least a limited purpose public figure...respondents are incorrect in their claim that Antebi failed to plead malice. He did so in his first amended complaint, which state that the defamatory statement was `motivated by factors which were beyond [the individual defendant's] purview as representatives [sic] of the College, including but not limited to personal dislike of [Antebi] and ill will towards [Antebi].'"

The case is Antebi v. Occidental College, B 186951 (Cal. C. A., 2d Dist.)(2006).

Read the entire ruling here.

http://lawprofessors.typepad.com/media_law_prof_blog/2006/08/former_college_.html

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