From Thursday's opinion by Judge Analisa Torres (S.D.N.Y.) in Netrebko v. Metropolitan Opera Ass'n:
After Anna Netrebko, an acclaimed opera singer, refused to repudiate Russian President Vladimir Putin in the wake of Russia's 2022 invasion of Ukraine, the Metropolitan Opera fired her….
Netrebko first alleges that the Met's February 27 Policy, in which it announced it would cut ties with artists and institutions that support or are supported by Putin, is "facially discriminatory" because it "singles out Russian artists." The Met argues that the Policy was "a political statement" and demonstrates that Netrebko's termination "ha[d] nothing to do with Netrebko being Russian" and everything to do with the Met's support for Ukraine and Netrebko's support for Putin….
The February 27 Policy is not facially discriminatory as it does not explicitly implicate a protected class. On its face, non-Russians can run afoul of the Met's policy. Moreover, a policy that targets "a generalized political affiliation, [and] not a specific national origin," cannot form the basis of a claim for national origin discrimination. That there exist Russian expatriates in the United States who support Putin does not compel a finding that the February 27 Policy facially discriminates against them.
Next, Netrebko alleges that the Met's discriminatory motivation is evidenced by (1) the "pretextual nature" of its stated reason for her firing (Netrebko's support of Putin), and (2) the fact that she was replaced by non-Russian performers. The Court disagrees.
First, the truth or falsity of the Met's stated reason for Netrebko's termination is immaterial so long as the Met's decision was based on a belief held in good faith. Netrebko has alleged no facts which plausibly suggest that the Met's stated reason for her termination masked an invidious motive to discriminate against Russians. This argument is, therefore, unavailing.
Netrebko's claim that her replacement by non-Russian performers establishes pretext fares no better…. The [Complaint's] treatment of Netrebko's non-Russian replacements is too cursory to permit a jury to determine whether they were similarly situated. "Plaintiff must 'show that similarly situated employees who went undisciplined engaged in comparable conduct.'" In support of this claim, Netrebko alleges only her replacements' nation of origin. The SAC fails to describe how Netrebko's non-Russian [Ukrainian, Italian, and Norwegian] replacements might be similarly situated as either Putin supporters or holders of a political belief or affiliation the Met finds similarly odious.
At bottom, the Met's firing of Netrebko, "while potentially indicating unfair dislike," does not sufficiently implicate her national origin to permit an inference of discrimination….
But the court concluded that
[Netrebko] has pleaded a claim of gender discrimination based on the "more favorable treatment" received by her male counterparts whom Netrebko alleges also had connections to Putin and the Russian state. For example, she alleges that the male opera singer Ildar Abdrazakov performed at political events, "including at least one event at which Putin … spoke about the war in Ukraine," and that Abdrazakov organized a Kremlin-backed music festival. She further states that male opera singer Evgeny Nikitin was featured at a Victory Day event involving Putin, and that Igor Golovatenko and Alexey Markov have performed at state-sponsored venues since the invasion of Ukraine. Although Netrebko has not alleged comparable conduct on the part of her female, non-Russian replacements, she has alleged conduct that permits comparison on the basis of gender.
{Netrebko does not claim that the male Russian performers had connections to Putin outside of a professional performance setting or made statements hinting at a pro-Putin stance. At summary judgment, Netrebko will be required to produced evidence to establish that the conduct of the male performers is not "too different in kind to be comparable to [Netrebko's] conduct."}
Here, Netrebko's claim of gender discrimination crosses the line from merely possible to plausible. The Second Circuit has held that "[a] defendant is not excused from liability" when discrimination is not the product of "a discriminatory heart, but rather [ ] a desire to avoid practical disadvantages" such as "negative publicity" or public pressure. "[C]lear procedural irregularities," against the backdrop of potential backlash and public scrutiny, may evince an unlawful "policy of bias favoring one sex over the other."
In [two past Second Circuit cases], male plaintiffs accused of sexual misconduct alleged that they were subject to disparate treatment when the defendant universities—facing public pressure over their mishandling of sexual assault and harassment on campus—found them culpable after hasty adjudicative processes plagued by procedural irregularities. The Circuit found that the irregularities in the handling of these matters coupled with other allegations were sufficient to establish a prima facie case of gender discrimination.
Here, the simultaneity of Netrebko's termination, public outcry over Putin's 2022 invasion, and the Met's efforts to show its pro-Ukraine bona fides—taken in conjunction with Netrebko's claim that the Met arbitrarily applied the February 27 Policy—suffice at the pleadings stage to create an inference of discrimination. Since 2017, the Met has collaborated with Moscow's Bolshoi Theatre, a "state-controlled institution," and Gelb [the Met's general manager] was in Moscow for a Bolshoi rehearsal "on the eve of the invasion of Ukraine." Netrebko alleges that the Met's "rapid turnabout on the Russian question"—from being at the Bolshoi one day to firing her a few days later—was part of its "anti-Russia publicity campaign."
Given the prominence of female opera singers compared to their male counterparts, Netrebko claims that "actions against [her], as a well-known 'diva' or 'prima donna' … would garner more international headlines than similar actions taken against male artists and would therefore be more successful in furthering the Met's anti-Russia publicity campaign." {Further supporting Netrebko's gender discrimination claim, an article cited—and incorporated by reference—in the SAC notes that another female Russian performer, Hibla Gerzmava, was fired by the Met after "com[ing] under fire for her ties to Putin," including for "signing a letter in support of Putin in 2014."}
In all, Netrebko plausibly alleges that, faced with "practical disadvantages"—such as the possibility of public pressure and negative press over its connections to the Russian state and individuals aligned with Putin—the Met adopted a "policy of bias favoring one sex over the other." …
Finally, Netrebko alleges that over the course of a year—coinciding with Russia's invasion of Ukraine and her firing by the Met—Gelb, on behalf of the Met, defamed her on multiple occasions…[:]
- {In an August 14, 2022 article in the Sunday Times, Gelb stated, "I was always aware [Netrebko] was, you know, a huge Putin supporter … The fact is she put herself in this awful position by being Putin's political acolyte and fan club member over a period of many years, which I had witnessed."
- In the same Sunday Times article, Gelb stated "When the war is over, Putin has been defeated, he's no longer in office, [and] [Netrebko]'s demonstrating genuine remorse. Maybe that's when we can consider [rehiring her]…. But I would say there's a very small chance of that happening.
- In a September 12, 2022 Guardian article, Gelb stated that Netrebko "is inextricably associated with Putin… She has ideologically and in action demonstrated that over a period of years."
- In a November 9, 2022 article in Limelight, Gelb stated, "Netrebko has demonstrated over a period of many years that she was kind of in lockstep politically and ideologically with Putin."
- In a February 27, 2023 Associated Press article, Gelb stated, referencing Netrebko's termination, "It's a small price to pay…. To be on the side of right was what's important. I wouldn't be able to look at myself in the mirror and have known Putin supporters performing on our stage."
- In a March 17, 2023 New York Times article, Gelb stated, "Although our contracts are 'pay or play,' we didn't think it was morally right to pay Netrebko anything considering her close association with Putin…. It's an artistic loss for the Met not having her singing here. But there's no way that either the Met or the majority of its audience would tolerate her presence."}
Because Netrebko is a public figure, she must prove that the allegedly defamatory statements were made with actual malice. "Actual malice is a high bar. A plaintiff cannot, for example, allege merely that the speaker was negligent in failing to uncover falsity or that he should have investigated his claims further before speaking." Actual malice exists if a false statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." "A 'reckless disregard' for the truth requires more than a departure from reasonably prudent conduct." The allegations must "permit the conclusion that the defendant in fact entertained serious doubts as to the truth" of the statements. Moreover, the actual malice standard is subjective and must be proven by clear and convincing evidence….
Netrebko has not met this high bar. She alleges that because the Met knew she made multiple statements opposing the war, distancing herself from Putin, and disavowing any connection to him, its subsequent statements referring to her as a Putin supporter must have been made with knowledge of their falsity or with reckless disregard for the truth. Yet, such a finding is not required. There is a difference between the Met knowing that Netrebko uttered these statements and the Met believing that what she said was true.
Netrebko fails to allege any facts demonstrating that her statements disassociating herself from Putin's war against Ukraine altered the Met's subjective belief that she supported the Russian leader. Thus, she has not adequately pleaded that the Met made any of the allegedly defamatory statements with "high degree of awareness of their probable falsity." … Although a court "typically will infer actual malice from objective facts" like "the defendant's own actions or statements, the dubious nature of [its] sources, and the inherent improbability of the story," the [Complaint] offers none that permit the Court to make this inference. At most, the [Complaint] contains "bare assertions of ill will," which are not sufficient to allege actual malice.
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