Fehlhaber v. Board of Education of the Utica City School District et al
Filing
84
MEMORANDUM-DECISION AND ORDER denying defts' 79 Motion to Strike portions of pltf's attorney affirmations;denying pltf's 73 Motion for Summary Judgment; granting in part and denying in part defts' 74 Motion for Summary J udgment. The federal due process and free speech claims are dismissed w/prejudice. The following claims remain for trial: (1) federal stigma-plus; (2) state law breach of contract; and (3) state law defamation against deft Willis. The trial in this matter is set for 8/14/12 at 9:30 a.m. in Utica, w/pretrial submissions to be filed by noon on 8/3/12. Signed by Judge David N. Hurd on 7/3/2012. (cbm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------CRAIG S. FEHLHABER,
Plaintiff,
6:09-CV-1380
v.
BOARD OF EDUCATION OF THE UTICA CITY
SCHOOL DISTRICT; and JAMES WILLIS,
Superintendent of Schools of the Utica City
School District,
Defendants.
----------------------------------APPEARANCES:
OF COUNSEL:
O’HARA, O’CONNELL LAW FIRM
Attorneys for Plaintiff
7207 East Genesee Street
Fayetteville, NY 13066
DENNIS G. O’HARA, ESQ.
STEPHEN CIOTOLI, ESQ.
OFFICE OF FRANK W. MILLER
Attorneys for Defendants
6575 Kirkville Road
East Syracuse, NY 13057
FRANK W. MILLER, ESQ.
BRYAN N. GEORGIADY, ESQ.
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On December 10, 2009, plaintiff Craig S. Fehlhaber ("plaintiff" or "Fehlhaber") filed
this action against the Board of Education of the Utica City School District and
Superintendent of Schools, James Willis ("Willis") (collectively "defendants"), asserting six
claims arising from an alleged conspiracy to terminate his employment. An October 29,
2010, Memorandum–Decision and Order granted in part and denied in part defendants'
motion for judgment on the pleadings. Fehlhaber v. Bd. of Educ., 2010 WL 4386936
(N.D.N.Y. Oct. 29, 2010). Plaintiff's stigma-plus, due process, and injurious falsehood
claims were dismissed, but his free speech, breach of contract, and defamation claims
survived. Id. at *7.
On March 29, 2011, United States Magistrate Judge George H. Lowe granted
plaintiff's motion to file an amended complaint, which contains the following federal causes
of action brought pursuant to § 1983: (1) deprivation of plaintiff's liberty interest in his
professional reputation ("stigma-plus"); (2) violations of plaintiff's substantive and
procedural due process rights; and (3) violation of plaintiff's right to free speech.1 Plaintiff
brings the following state law causes of action: (4) breach of contract; and (5) defamation
against Willis.
On February 17, 2012, plaintiff and defendants both filed a motion for summary
judgment. These motions have been fully briefed. Defendants subsequently filed a
motion to strike various portions of plaintiff's attorney affirmations that accompanied his
motion for summary judgment. Plaintiff has responded to this motion.
Oral argument was heard on June 22, 2012, in Utica, New York. Decision on all
motions was reserved.
II. FACTUAL BACKGROUND
Unless otherwise noted, the following facts are undisputed. Fehlhaber began
working as the Superintendent of Buildings and Grounds for the Utica City School District
1
Plaintiff was perm itted to re-assert his stigm a-plus and due process claim s based on
developm ents in the case— specifically the abolishm ent of his position and term ination of his em ploym ent
while the m otion for judgm ent on the pleadings was pending.
- 2 -
("the District") in March 1998 and was permanently appointed to this position on March 26,
2002.2 On July 12, 2006, he and the District entered into a written employment
agreement, which the District drafted. Plaintiff alleges, and defendants deny, that in late2006 and 2007 three District administrators conspired with Dr. Victor Pellegrino ("Dr.
Pellegrino"), a member of the Utica City Board of Education ("the Board"), to terminate
plaintiff's employment.3
In November or December 2006, Dr. Pellegrino held a press conference to
announce a new District capital project. Plaintiff alleges that at this event, Dr. Pellegrino
dramatically waved a newspaper article concerning a previous District project that was
tainted by a state commission's investigation of financial mismanagement. He then,
allegedly, vowed to prevent similar mismanagement of the new project. Fehlhaber was
known to be directly involved in the management of the previous project and was
precluded from several important aspects of the new project.
From the inception of his employment in 1998 until April 2007, Fehlhaber did not
receive any negative employment evaluations or critical memoranda. On April 12, 2007,
however, he was suspended pursuant to section 75 of the New York Civil Service Law and
charged with sixteen violations, comprising approximately 160 specific instances of
misconduct. An administrative hearing was conducted from May 2007 through August
2
The title of this position was originally "Supervisor" of Buildings and Grounds but was changed
in 2000.
3
The three District adm inistrators include: Marilyn Skerm ont, then-Superintendent of Schools;
Frank Conestabile, then-Director of Labor Relations and District Services; and Maureen Albanese, School
Business Official.
- 3 -
2008.4 In a written decision dated December 27, 2008, the hearing officer found plaintiff
guilty of six specific instances of misconduct and recommended that he remain suspended
until February 17, 2009.5 Pursuant to the employment agreement, this decision was
binding on the parties. Neither plaintiff nor the District appealed the hearing officer's
decision. Plaintiff collected his regular salary during the pendency of his suspension
except for sixty days, which was deemed disciplinary unpaid leave.
On January 1, 2009, Willis replaced Marilyn Skermont as Superintendent of
Schools. When plaintiff returned to his position on February 17, 2009, Willis reduced his
previous job responsibilities, limited his involvement in the ongoing capital project, and
transferred a variety of his duties to Michael Delia, the District's Maintenance Foreman
("Delia") who had assumed many of the duties in Fehlhaber's absence. Plaintiff was
advised that he now had no supervisory authority over anyone in the District other than his
secretary. Plaintiff alleges that he was also forbidden to speak with anyone other than his
secretary and was prohibited from speaking at Board meetings and professional functions.
Also on plaintiff's first day back, Willis allegedly told him, in front of other employees, "no
one in the District has confidence in you." Am. Compl. ¶ 82.6
4
This hearing process included thirty scheduled sessions. Twenty-eight witnesses testified, and
over 200 exhibits were received into evidence.
5
The hearing officer specifically noted: "As there were over 160 charges filed by the district, I will
not m ake a decision on each and every charge. I will m ake m y decision on what I consider the m ajor
issues that have been presented and argued by both parties." Ciotoli Affirm ation, Feb. 17, 2012, Ex. M, 2
(The pagination corresponds to the page num bers as assigned on CM/ECF. This convention will be used
throughout the order for citations to exhibits.).
6
Later in the am ended com plaint, plaintiff alleges that this statem ent was m ade "during [a]
m eeting in August 2009." Am . Com pl. ¶ 126(d). This appears to be a typographical error as the first
notice of claim and the original com plaint alleged it was uttered on the date of plaintiff's reinstatem ent,
which was February 17, 2009.
- 4 -
In a February 18, 2009, newspaper article Willis, referring to plaintiff, was quoted
as stating: (1) "The job was not being done correctly before, I don't want the district going
back to a position where the work is not being done correctly"; and (2) "We'll structure the
department to ensure all work is performed correctly. Maybe the job duties were too
broad and maybe that's why (Fehlhaber) failed." Am. Compl., Ex. C. Plaintiff further
alleges that during an August 2009 meeting, Willis exclaimed: "It was shoddy
workmanship and borderline criminal behavior. Weren't you responsible for this? I don’t
give a God damn about statutes of limitations, I am going to have this investigated." Am.
Compl. ¶ 43(d).
In early-September 2009 plaintiff attended a meeting of the New York State
Association for Superintendents of School Buildings and Grounds. He spoke critically of
the District and aired personal grievances to attendees of this meeting. On Sunday,
September 20, 2009, plaintiff contacted the Superintendent of Oneida–Madison County
BOCES without pre-approval from Willis. During this phone call, plaintiff complained
about communication problems he was experiencing with a BOCES employee, Joe Muller
("Muller"). On September 23, 2009, Willis had a disciplinary meeting with plaintiff
regarding his comments at the meeting and his phone call to the BOCES superintendent.
The following day Willis issued a "counseling memorandum" to plaintiff documenting this
meeting. Ciotoli Affirmation, Feb. 17, 2012, Ex. Z.
Throughout his tenure as superintendent, Willis issued weekly "bulletins" to the
Board highlighting issues important to the District. Bulletins from January 30 through
September 25, 2009, indicate that plaintiff's return and job responsibilities were discussed
numerous times. These documents also show that Willis and the Board communicated
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with the Civil Service Commission regarding a proposal to create a "Director of Buildings
and Grounds" and an "Assistant Director of Buildings and Grounds" positions or, in the
alternative, co-directorships. On June 25, 2009, the District received notice that its
proposal had been denied.
Thereafter, the Board authorized a new Director of District Operations and Safety
position. In November 2009, upon Willis's recommendation, the District hired Muller7 to fill
this position. Plaintiff alleges that Muller did not possess the proper certifications and was
hired in an attempt to further limit the need for his position. In this position, Muller became
plaintiff's direct supervisor and assumed many of the tasks that had been performed by
Delia, who retired around this time.
On April 20, 2010, Willis informed plaintiff that his position was being
recommended to be cut from the upcoming budget. On May 25, 2010, the Board voted to
abolish three administrators' positions, including the Superintendent of Buildings and
Grounds. On June 29, 2010, plaintiff's employment was officially terminated. The other
two administrators whose positions had been abolished were eventually rehired to fill other
positions within the District. It is undisputed that plaintiff did not receive the annual
longevity payment of $1800 or a pay raise required by the employment agreement from
the beginning of his suspension in April 2007 to the termination of his employment in June
2010.
Fehlhaber filed two notices of claim with the District. The first, dated March 27,
2009, alleged due process, stigma-plus, defamation, and breach of contract claims as well
7
This is the sam e BOCES em ployee that plaintiff com plained about in the Septem ber 20, 2009,
phone call to the BOCES Superintendent. Plaintiff was reprim anded by W illis for that phone call.
- 6 -
as a violation of New York Civil Service Law. Plaintiff filed his second notice of claim on
August 12, 2010, alleging breach of contract and a violation of New York Civil Service
Law.
III. DISCUSSION
A. Motion to Strike
Defendants seek to strike various sections of attorney Stephen Ciotoli's affirmations
in support of plaintiff's motion for summary judgment. Defendants assert that these
sections inappropriately contain excessive adversarial argument, personal opinion,
speculation, and paraphrasing of evidence. They further contend that striking the
inappropriate sections is necessary to clarify the record in the event of a future appeal.
Plaintiff opposes and claims that the disputed sections merely summarize admissible
evidence already in the record.
Courts may strike portions of an affidavit that are not based on the affiant's
personal knowledge, are inadmissible, or make conclusory statements. Hollander v. Am.
Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999). However, such relief is often
unnecessary as courts are able to distinguish between proper and improper submissions.
See Martin v. Town of Westport, 558 F. Supp. 2d 228, 231 (D. Conn. 2008) ("Defendants
should have faith, however, that the court knows the difference between admissible and
non-admissible evidence, and would not base a summary judgment decision simply upon
the self-serving [testimony] of a particular party.").
Defendants' motion to strike will be denied. Any inappropriate portions of these
affirmations will be disregarded, and only admissible evidence will be relied upon.
- 7 -
B. Motion for Summary Judgment—Legal Standard
The entry of summary judgment is warranted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 2552 (1986) (citing Fed. R. Civ. P. 56(c)); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986). A fact is "material" for purposes of
this inquiry if it "might affect the outcome of the suit under the governing law." Anderson,
477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549,
553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at
248, 106 S. Ct. at 2510.
When summary judgment is sought, the moving party bears the initial burden of
demonstrating that there is no genuine issue of material fact to be decided with respect to
any essential element of the claim. Id. at 250 n.4, 106 S. Ct. at 2511 n.4. The failure to
meet this burden warrants denial of the motion. Id. In the event this initial burden is met,
the opposing party must show, through affidavits or otherwise, that there is a material
issue of fact for trial. Id. at 250, 106 S. Ct. at 2511; Fed. R. Civ. P. 56(e).
When deciding a summary judgment motion, a court must resolve any ambiguities
and draw all inferences from the facts in a light most favorable to the nonmoving party.
Jeffreys, 426 F.3d at 553. Summary judgment is inappropriate where "review of the
record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's]
favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); see
- 8 -
also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate
only when "there can be but one reasonable conclusion as to the verdict").
C. Violation of Liberty Interest (Stigma-Plus)
Fehlhaber alleges that defendants deprived him of his liberty interest in his
professional reputation by publicly criticizing him during the course of abolishing his
position and terminating his employment. He specifically alleges that the following actions
harmed his reputation: Dr. Pellegrino's actions at the 2006 press conference; the
prolonged section 75 hearing; the significant reduction in job responsibilities; Willis's
quoted statements in the February 18, 2009, newspaper article; Willis's comments made
in the presence of other District employees; and the bulletins Willis provided to the Board
between January and September 2009.8 Plaintiff argues that defendants' actions have
prevented him from securing employment with other school districts.
To be successful on such a claim, plaintiff must prove: (1) the utterance of a
statement that is injurious to his reputation or denigrates his competence; (2) the
statement was made public; and (3) the statement was made "concurrently with, or in
close temporal relationship to, the plaintiff's dismissal from government employment."
Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006). With regard to the temporal
relationship prong, "perfect parity" between the stigma and the plus is not required. Velez
v. Levy, 401 F.3d 75, 89 (2d Cir. 2005). "When government actors defame a person
and—either previously or subsequently—deprive them of some tangible legal right or
8
Plaintiff also argues that the term ination of his em ploym ent itself was stigm atizing. However, he
cannot rely on the negative inferences drawn by the public from his term ination to m ake out a stigm a-plus
claim . See O’Connor v. Pierson, 426 F.3d 187, 195 (2d Cir. 2005) (holding that even if "townsfolk drew
negative inferences from [plaintiff's] suspension, this is not enough to m ake out a stigm a-plus claim "). In
short, plaintiff cannot sim ply allege that "the plus alone has created the stigm a." Id.
- 9 -
status, a liberty interest may be implicated, even though the 'stigma' and 'plus' were not
imposed at precisely the same time." Id. (internal citation omitted). This prong is satisfied
if the stigma and the plus would appear connected to a reasonable observer. Id.
In addition to the above three elements, plaintiff must show that the deprivation of
his liberty interest was without due process of law. Segal, 459 F.3d at 213. Before nonprobationary government employees can be deprived of a liberty interest by high-ranking
officials with final decision-making authority, they must be provided with pre-deprivation
process. Velez, 401 F.3d at 91–92.
The parties agree that the abolishment of plaintiff's position and his termination
satisfy the "plus" part of this claim. Defendants argue that they are entitled to summary
judgment because the allegedly stigmatizing statements were not made in the course of
the abolishment and termination, and plaintiff failed to request a post-termination nameclearing hearing.9
1. Temporal Relationship
Defendants correctly point out that the most recent allegedly stigmatizing statement
was a bulletin that Willis provided to the Board on September 25, 2009—eight months
prior to the abolishment of plaintiff's position on May 25, 2010. Although there is no brightline rule, eight months is too attenuated for purposes of a stigma-plus claim. See Martz v.
9
Defendants do not challenge whether the allegedly stigm atizing statem ents actually injured
plaintiff's reputation or denigrated his com petence. They do, however, assert that the bulletins W illis
presented to the Board were not "public." These docum ents were m arked "CONFIDENTIAL." See, e.g.,
Ciotoli Affirm ation, Feb. 17, 2012, Ex. R, 30. However, it is reasonable to infer that the bulletins were
viewed by m ore District em ployees than just the seven Board m em bers. Indeed, W illis testified that they
were distributed every Friday and were sim ply placed "on the top of the filing cabinets." Georgiady Decl.,
Feb. 17, 2012, Ex. G, 182:12–13 ("W illis Dep."). Further, the "Board clerk" included these bulletins in
"Friday packets" that were provided to the Board m em bers in preparation for the following week's Board
m eeting. Id. at 182:16–18. Therefore, it is probable that the inform ation contained in the bulletins was
viewed by various District em ployees and discussed at subsequent public Board m eetings.
- 10 -
Inc. Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) (allegedly defamatory statements
uttered over five months after plaintiff's termination "were not made in the course of
dismissal" (internal quotation marks omitted)).
However, this is an oversimplification of the facts. Plaintiff's assertion that the
allegedly stigmatizing statements were made public during an ongoing conspiracy to
terminate his employment distinguishes this stigma-plus claim from the cases cited by
defendants in which the statements were isolated events that occurred after the
government employee had been terminated. See id. (statement concerned matter that
only came to light after the termination and, therefore, could not have been connected to
it); Gentile v. Wallen, 562 F.2d 193, 198 (2d Cir. 1977) (statement was made three months
after plaintiff's employment was terminated).10
When the record is viewed in the light most favorable to plaintiff, a reasonable
observer may conclude that the effort to terminate his employment actually began in 2006
with Dr. Pellegrino's public comments implicating him in the mismanagement of funds
related to a District project. See Patterson v. City of Utica, 370 F.3d 322, 334 (2d. Cir.
2004) (jury verdict on stigma-plus claim justified by evidence of "[a] subtle campaign
designed by city officials to make plaintiff the scapegoat for an episode of municipal
malfeasance"). Plaintiff maintains that the prolonged section 75 hearing, initiated in April
2007 despite a lack of any prior negative employment evaluations, was a "sham . . . that
included fabricated charges" brought to further besmirch his public reputation and
10
Defendants also rely on Malapanis v. Regan, 340 F. Supp. 2d 184 (D. Conn. 2004), aff'd, 147
F. App'x 219 (2d Cir. 2005). However, the "stigm a" in this case involved a state agency's listing of a
com pany as a "non-responsible bidder" four m onths prior to term inating the com pany's contract. Id. at
186. This case did not involve allegedly stigm atizing statem ents m ade public during the course of an
alleged ongoing conspiracy by governm ent officials to term inate an em ployee.
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terminate his employment. Am. Compl. ¶ 80. He asserts that defendants, unhappy with
the section 75 hearing officer's decision to reinstate him, schemed to ultimately terminate
his employment by isolating him, reducing his duties, preventing him from accomplishing
what duties he retained, and restructuring the administration to eliminate the need for his
position.
It is undisputed that when Fehlhaber returned to work in February 2009, Willis
reduced his job responsibilities, advised him that he had no supervisory authority over
anyone but his secretary, and forbid him from issuing staff directives without prior
approval. Further, during 2009, the District petitioned the Civil Service Commission to
create a "Director of Buildings and Grounds" and an "Assistant Director of Buildings and
Grounds" positions or, in the alternative, co-directorships. This request was denied, which
"frustrated and surprised" Willis. Willis Dep. at 115:4. Thereafter, the District created a
new Director of District Operations and Safety position and hired Muller to fill this vacancy
in November 2009. Plaintiff maintains that Muller did not possess the required
certifications and qualifications for this job.
Defendants maintain that the restrictions placed on plaintiff were necessary and
justified given the six infractions of which he had been found guilty during the section 75
hearing. They further argue that the restructuring of the administration was an effort by
Willis—a new superintendent—to streamline the management of the District and combat
economic realities of a budget shortfall. Willis also maintains that the idea to abolish
plaintiff's position was not considered until January 2010. With respect to Muller's
qualifications for the newly created position, defendants assert that he was in the process
of obtaining the necessary certifications when he was hired in November 2009.
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Defendants' interpretation of the facts is reasonable. It is equally reasonable,
however, to conclude that their actions were part of a concerted ongoing effort to push
Fehlhaber out of the District. Indeed, Willis firmly noted that he believed plaintiff
"absolutely" should have been fired after the section 75 hearing. Id. at 157:17–19.
Moreover, it is undisputed that plaintiff was the only administrator whose employment was,
ultimately, terminated as a result of the District reorganization.
These competing reasonable interpretations of the facts present issues of material
fact as to whether the allegedly stigmatizing statements were made public during the
overall course of the abolishment of plaintiff's position and in connection with the
termination of his employment.
2. Adequate Process
At oral argument, defendants noted that their primary defense to the stigma-plus
claim is that plaintiff had adequate process available; to wit, a post-termination nameclearing hearing pursuant to Article 78. However, such post-termination due process is
only sufficient in the context of "at-will" employment. See Segal, 459 F.3d at 214–15. In
the absence of an emergency situation, non-probationary government employees are
entitled to process before they are deprived of a liberty interest by actions of high-ranking
officials with final decision-making authority. Velez, 401 F.3d at 91–92; DiBlasio v.
Novello, 344 F.3d 292, 302–04 (2d Cir. 2003).
Fehlhaber was not an at-will employee and, according to his employment contract,
could only be terminated "for cause." Am. Compl., Ex. A, ¶ 14(a). The persons who
allegedly engaged in a conspiracy to terminate his employment and made the allegedly
stigmatizing statements in the course thereof include Board members and Superintendent
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Willis. They are high-ranking officials in the District who, according to Willis's own
testimony, possess the authority to alter job duties and eliminate employment positions. It
is undisputed that plaintiff was not provided with any pre-deprivation due process.
Accordingly, both motions for summary judgment will be denied as to the stigmaplus claim.
3. Damages
In terms of remedy for the stigma-plus claim, Fehlhaber may not seek
reinstatement.11 He may recover for compensatory damages that he can show were
actually caused by the deprivation of his liberty interest.12 See Patterson, 370 F.3d at
337–38 (where a name-clearing hearing is an inappropriate or insufficient remedy,
compensatory damages may be awarded in addition to nominal damages for the
deprivation itself).
Moreover, plaintiff alleges that the harm to his professional reputation has
prevented him from securing future employment. In order to be entitled to damages for
the loss of future employment, plaintiff must show that defendants' actions actually
foreclosed future employment opportunities—unless the stigmatizing statements
"obviously implicate [his] good name or honor, such as criminal allegations." Id. at 330
n.1; see also Donato v. Plainview–Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (2d
11
Indeed, he does not seek reinstatem ent in this action. Plaintiff unsuccessfully pursued this
rem edy in state court. See Fehlhaber v. Bd. of Educ., 2012 W L 2164474 (N.Y. App. Div. 4th Dep't June
15, 2012) (affirm ing the dism issal of Fehlhaber's Article 78 petition seeking to com pel the Board to appoint
him to the position of Maintenance Forem an or, in the alternative, allow him to resum e a teaching
position).
12
In addition to his loss of salary and com pensation from the District, plaintiff claim s to have
suffered em otional dam ages related to the em barrassm ent, hum iliation, and m ental anguish caused by
defendants' conduct. Am . Com pl. ¶¶ 89, 91.
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Cir. 1996) ("[A] government announcement that it has fired an employee for incompetence
or because [he] can no longer do the job is considerably graver and carries more potential
for future disqualification from employment than a statement that the individual performed
a job poorly." (internal quotation marks omitted)). The allegedly stigmatizing statements at
issue do not obviously implicate Fehlhaber's honor or directly accuse him of criminal
behavior. Nor did defendants announce that he had been fired for incompetence or that
he could no longer do the job. Therefore, in order for plaintiff to recover damages for the
loss of future employment opportunities, he must establish that defendants' conduct
actually foreclosed such opportunities.
D. Due Process
In the amended complaint, plaintiff combines notions of both procedural and
substantive due process into one claim. He alleges that defendants deprived him of both
while abolishing his position and terminating his employment.
1. Procedural Due Process
Defendants concede that as a permanent civil service employee, plaintiff had a
protected property interest in his continued employment. The issue thus becomes
whether plaintiff was provided with adequate notice and a meaningful opportunity to be
heard. See O'Neill v. City of Auburn, 23 F.3d 685, 688 (2d Cir. 1994).
a. Notice
On April 20, 2010, Willis met with plaintiff and advised that "his position was being
recommended to be cut from the 2010–11 school year budget." Willis Aff., Ex. M. Willis
also advised that if the Board adopted his proposed staff and budget cuts, plaintiff's
employment would end on June 30, 2010. The following day plaintiff submitted a
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memorandum to Willis in which he noted: "On Tuesday afternoon, April 20, 2010, at 3:00
p.m. in your office, you verbally informed me that you were cutting my position as
Superintendent of Buildings & Grounds from the 2010–2011 Budget." Georgiady Decl.,
Feb. 17, 2012, Ex. M. Plaintiff faxed this memorandum to his attorney on April 22, 2010.
The Board voted to abolish plaintiff's position on May 25, 2010—over a month after his
meeting with Willis. Therefore, plaintiff was provided with sufficient notice. Cf. Cifarelli v.
Vill. of Babylon, 894 F. Supp. 614, 621 (E.D.N.Y. 1995) (finding insufficient notice where
employee was advised of the pending abolishment of his position "no more than a 'few
hours' before the Village's decision was formalized"), aff'd, 93 F.3d 47 (2d Cir. 1996).
b. Pre-Termination Hearing
Where the decision to abolish a public employee's position is made by high-ranking
officials who have final decision making authority, the aggrieved employee is generally
entitled to a pre-termination hearing. Dwyer v. Regan, 777 F.2d 825, 832–33 (2d Cir.
1985). Yet, a municipal entity may "decide to make its operations more efficient by
abolishing or consolidating positions or by implementing a considered substantial
reduction in its work force." Id. at 833, modified by, 793 F.2d 457, 457 (2d Cir. 1986). In
such a situation, the municipality need not routinely provide pre-termination hearings for
employees whose positions are eliminated. Id.
However, where it is alleged that defendants targeted a single employee for
termination and that employee "protests the notice of elimination of his position and
contends that it is but a sham and pretext for the deprivation of his property right,"
defendants must grant a pre-termination hearing to be conducted by a fact-finder outside
the agency responsible for the challenged action. Id. Importantly, the employee bears the
- 16 -
responsibility to request such a hearing. See id. (noting that if, on remand, plaintiff
"cannot show that he made a timely request for a pretermination hearing, he is not entitled
to recover for the failure to receive such a hearing").
The decision to abolish Fehlhaber's position was made by Willis and the Board—
high-ranking District officials with final decision making authority. However, plaintiff failed
to protest the notice of elimination or request a pre-termination hearing, despite the fact
that he and his attorney knew—over a month in advance—that the Board was considering
abolishing his position. The only communication among plaintiff and the District between
his April 20 meeting with Willis and the May 25 Board vote was his April 21 memorandum
to Willis and a letter from his counsel to Willis. The memorandum merely requested a
copy of notes taken during the April 20 meeting. Counsel's letter noted that plaintiff
wished to "bump" a less-senior employee pursuant to Civil Service Law section 80 upon
the abolishment of his position. Willis Aff., Ex. P. Neither document sought a pretermination hearing or alleged that the proposed abolishment of the Superintendent of
Buildings and Grounds position was merely a pretext to terminate plaintiff's employment.
Further, during his deposition, plaintiff acknowledged that he attended the Board meeting
at which his position was eliminated, but he did not speak out against it.
At oral argument, plaintiff's counsel acknowledged that he never explicitly
requested a pre-termination hearing. Plaintiff instead argues that the two notices of claim
he filed with the District provided adequate notice of his assertion that the abolishment
was a sham. However, the first notice of claim was filed before he even received notice of
the pending abolishment, and the second notice of claim was filed after his employment
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had been terminated. These notices do not constitute a request for a pre-termination
hearing.
c. Post-Termination Hearing
Even if an employee did not timely request a pre-termination hearing, he is
nevertheless entitled to a post-termination hearing to address his claim that the
abolishment of his position was a sham. Dwyer, 777 F.2d at 834 (noting that a posttermination proceeding is "more valuable" since subsequent events, i.e. the transfer of
duties to a new employee, may provide evidence of pretext).
At oral argument, plaintiff's counsel conceded that plaintiff never formally requested
a post-termination hearing to challenge the abolishment of his position as a pretext to
terminate his employment. Although Fehlhaber initiated an Article 78 proceeding after his
termination, he apparently did not include a claim that the abolishment of his position was
a sham. In fact, the amended complaint specifically indicates that the matters included in
the Article 78 petition "(bumping rights and tenure rights) are substantively different from
this action (abolishment of plaintiff's position)." Am. Compl. ¶ 65; see also id. ¶ 64
("[D]efendants have also refused to afford or recognize plaintiff's demand to bumping
rights into a lower level civil service position or to return from a leave of absence to his
tenured teaching position within the District, issues which are explicitly excluded as issues
for this action."). Instead of challenging the abolishment of his position in the Article 78
petition, Fehlhaber is challenging the District's failure or refusal to move him to the next
less-senior civil service position. Plaintiff does not allege that the Article 78 process is
inadequate to challenge the abolishment of his position.
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In sum, plaintiff received sufficient notice of the pending abolishment of his
position. However, he did not protest or request a pre-termination hearing. He similarly
failed to challenge the abolishment in the available post-termination Article 78 proceeding.
Accordingly, defendants' motion for summary judgment will be granted as to the
procedural due process claim.
2. Substantive Due Process
In the amended complaint, Fehlhaber alleges that defendants deprived him of his
right "to earn a living in his chosen profession" in an egregious, outrageous, and
conscience-shocking manner. Am. Compl. ¶¶ 97, 100. However, rights related to
employment are not fundamental constitutional rights protected by substantive due
process. See Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198, 99 S. Ct. 1062, 1064
(1979) (per curiam) (comparing employment interests to those "resembling the individual's
freedom of choice with respect to certain basic matters of procreation, marriage, and
family life" (internal quotation marks omitted)); Local 342, Long Island Pub. Serv. Emps. v.
Town Bd. of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994) (routine state-law contractual
rights are not worthy of substantive due process protection).
Accordingly, defendants' motion for summary judgment will be granted as to the
substantive due process claim.
E. Free Speech
Plaintiff alleges that Willis imposed a blanket restriction on his right to speak
publicly without prior approval. Specifically, plaintiff claims that he was forbidden to speak:
(1) to the Board; (2) to other District employees, except for his secretary; (3) to
administrators in other districts; and (4) at meetings of a professional organization to which
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he belonged. Defendants maintain that the only restrictions placed on plaintiff's speech
related to communications made during the course of his public employment.
A public employee does not surrender his First Amendment rights by virtue of his
employment. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 1957 (2006). He
instead retains the right "to speak as a citizen addressing matters of public concern." Id.
However, a government employer may restrict an employee's speech "that has some
potential to affect the entity's operations." Id. at 418, 126 S. Ct. at 1958. Specifically,
"when public employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline." Id. at 421, 126 S. Ct. at 1960.
Therefore, restricting such speech does not violate the employee's free speech rights. In
short, "[r]estricting speech that owes its existence to a public employee's professional
responsibilities does not infringe any liberties the employee might have enjoyed as a
private citizen." Id. at 421–22, 126 S. Ct. at 1960.
1. Speech to the Board and District Employees
Plaintiff does not identify any evidence to establish an issue of material fact as to
whether defendants specifically forbade him from speaking to members of the Board or
other District employees. When asked whether Willis ever directed him not to speak with
"other employees of the school district other than [his] secretary" or gave him "direction or
instruction as to what [he] could or could not say to administrators in the school district,"
plaintiff answered: "I don't recall." Georgiady Decl., Feb. 17, 2012, Ex. J, 221 ("Fehlhaber
Dep."). Further, when asked if anyone "ever told you you can't address the Board of
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Education in a public setting," plaintiff replied: "Not to my knowledge." Id. 222:22–24. He
also acknowledged that he did, in fact, address the Board on several occasions in 2009.
A September 1, 2009, counseling memorandum from Willis advised plaintiff that he
was not to attend committee meetings unless Willis assigned him to such committees.
See Ciotoli Affirmation, Feb. 17, 2012, Ex. Y. It also prohibited plaintiff from writing staff
directives without prior authorization but permitted him to continue "providing information
to staff" concerning projects to which he was assigned. Id. Willis acknowledges informing
plaintiff that "he was not to give direction to staff." Willis Dep. 246:18. However, these
restraints are clearly related to speech conducted in plaintiff's official capacity and,
therefore, are not protected by the First Amendment.
Plaintiff does not point to any evidence in the record to establish a disputed issue of
material fact as to whether he was ever restricted from speaking to the Board or District
employees on matters other than those pursuant to his official duties.
2. Speech to Outside District Administrators
It is undisputed that plaintiff contacted Howard Mettelman, the Superintendent of
Oneida–Madison BOCES ("Mettelman"), by phone on Sunday, September 20, 2009,
without pre-approval from Willis. Shortly thereafter, Mettelman contacted Willis to
complain about this call. Willis called plaintiff into a meeting on September 23, 2009, and
reprimanded him for contacting Mettelman on a weekend about District matters. Willis
issued a counseling memorandum documenting this meeting and advising Fehlhaber not
to engage in similar conduct in the future.
Plaintiff asserts that this was a friendly, personal call protected by the First
Amendment. This is unpersuasive. In the counseling memorandum, Willis specifically
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asserts that Mettelman "emphatically notes that your call was not a friendship call, but
rather one pertaining to a business matter." Ciotoli Affirmation, Feb. 17, 2012, Ex. Z.
Moreover, plaintiff admitted that he and Mettelman had a "professional relationship,
because we had been on some committees together." Fehlhaber Dep. 198:3. In
response to the open-ended question, "what did you talk to him about?" plaintiff answered:
"An issue about fire safety" and "setting up training sessions" in the District. Id. at
198:6–11. Plaintiff explained that Willis had assigned him to organize this training, and he
was having communication problems with one of Mettelman's employees13 who was to
conduct the training. Id. at 198:11–13. He contacted Mettelman directly to complain
about the poor communication. Id. at 199:14–17.
Therefore, the only reasonable conclusion is that plaintiff's entire phone call to
Mettelman stemmed from his official duties as Superintendent of Buildings and Grounds,
and defendants' restriction on similar future communication did not implicate the First
Amendment.
3. Speech at a Professional Organization Meeting
Also at the September 23, 2009, meeting, Willis reprimanded plaintiff for comments
he made at a meeting of the New York State Association for Superintendents of School
Buildings and Grounds. Plaintiff acknowledges speaking critically about the District and
airing personal grievances at this meeting but asserts that he was not acting as a public
official at this event. This too is without merit. The event took place during business
hours, in a neighboring school district's building, and was a meeting of Superintendents of
13
That em ployee was Muller, who was later hired by the District to a new position as plaintiff's
direct supervisor.
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School Buildings and Grounds from around the area. As this is not an organization that
private citizens may join, plaintiff could not have been acting as a citizen. See Weintraub
v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir.) (public school teacher spoke as an employee
where speech was made in the form of internal grievance forms "for which there is no
relevant citizen analogue"), cert. denied, 131 S. Ct. 444 (2010).
Plaintiff's attendance at and speech during this event was therefore a direct result
of his professional responsibilities. When asked whether attending such meetings was
one of his job duties, plaintiff answered, "I guess, yes." Fehlhaber Dep. 142:10–12; see
also id. at 142:13–15 ("Q: What was your role there in going to those meetings? A: I was
Superintendent of Buildings and Grounds.").
In short, the record indicates that Willis drew a distinction between speech made by
Fehlhaber during the course of his official functions and that made during personal
conversations with peers and friends. The notes and memoranda show that Willis only
sought to restrain the former category of speech. In his deposition, plaintiff evidences an
understanding of this distinction. See id. at 216–17 ("Q: He didn't tell you you couldn't
have any conversation with them at all. He was telling you that when you're at the meeting
and there's official business being conducted, you're to do District business, not personal
business; is that correct? Is that what he told you? A: That's what he's saying here,
yes.").
Accordingly, defendants' motion for summary judgment will be granted as to the
free speech claim.
F. Breach of Contract
Plaintiff alleges that defendants breached the employment agreement by failing to
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provide pay raises and longevity payments, and by stripping his job duties.14 Defendants
concede that plaintiff was not provided with pay raises and longevity payments after his
suspension in April 2007, but they assert that this claim must be dismissed because he did
not include it in the March 27, 2009, notice of claim. In the alternative, defendants argue
that the contract is ambiguous and that plaintiff breached first by failing to perform his job
duties competently.
1. Notice of Claim
Before initiating a legal action against a school district or officer thereof, a potential
plaintiff must first present a notice of claim to the district's governing body within three
months after accrual of such claim. N.Y. EDUC . LAW § 3813(1). This notice requirement is
designed "[t]o enable authorities to investigate, collect evidence and evaluate the merit of
a claim." Brown v. City of New York, 95 N.Y.2d 389, 392–93 (2000). An adequate notice
of claim allows the governmental entity to examine the claim to determine if it "should be
settled or satisfied without subjecting the parties to costly litigation." Mroz v. City of
Tonawanda, 999 F. Supp. 436, 453 (W.D.N.Y. 1998).
Defendants rely on P.J. Panzeca, Inc. v. Board of Education, 29 N.Y.2d 508
(1971), which, they argue, requires a notice of claim for breach of contract to specify an
amount of damages and provide the means of computation of that amount. However, that
case simply noted that "the critical element in a verified claim in a contract action is the
14
The breach of contract claim in the am ended com plaint does not specifically include allegations
related to the reduction of job duties. However, the factual allegations elsewhere in the docum ent provide
sufficient notice of this allegation. Plaintiff also alleges that the contract rem ains in effect pursuant to the
autom atic renewal clause in paragraph 3(c) of the contract because his em ploym ent was never form ally
term inated in writing. This argum ent is without m erit as the parties agree his em ploym ent was form ally
term inated on June 29, 2010.
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monetary demand and some suggestion at least on how the sum is arrived at or damages
incurred." Id. at 509. Moreover, the plaintiff in P.J. Panzeca never filed a formal notice of
claim and instead argued that defendants were provided with adequate notice via
paperwork it filed in support of an order to show cause for an injunction. Id. This
paperwork, however, completely lacked any indication of what damages plaintiff incurred.
Id. at 510.
Fehlhaber filed a formal notice of claim on March 27, 2009. This document
included a claim for "breaching the employment contract between Claimant and the
Board" and specifically identified the contract as the "Employment Agreement with the
Board dated as of July 12, 2006." Georgiady Decl., Feb. 17, 2012, Ex. C, ¶¶ 1, 14. In the
notice, plaintiff referenced letters he had written to Willis regarding, inter alia, "the receipt
of contractually mandated benefits." Id. ¶ 60. He also complained that Willis
"substantially" altered his job duties and responsibilities "in contravention of the clear
mandates of Claimant's employment contract." Id. ¶ 74. This language is sufficient to put
defendants on notice that Fehlhaber alleged they breached his employment contract by
reducing his job duties and failing to provide payments and benefits outlined in the
contract. The pay increases, longevity payments, and other benefits are clearly detailed in
the employment contract—which the District drafted. This enabled the District to conduct
an investigation of these matters and readily determine what "mandated benefits" plaintiff
referred to in the notice of claim.
Therefore, the March 27, 2009, notice of claim satisfied its purposes with respect to
plaintiff's breach of contract claim.
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2. Merits of the Breach of Contract Claim
It is undisputed that plaintiff did not receive the annual pay increases and longevity
payments required by the employment contract. Defendants assert that plaintiff was not
entitled to these payments after his April 2007 suspension because he materially
breached the contract. The pertinent portion of the contract states:
4. Building Superintendent's Duties and Responsibilities.
(a) The Building Superintendent shall perform all the duties of the
position as outlined in the Civil Service Specifications for said position
on file with the District, and such other related duties as may be
assigned by the Superintendent and/or Board from time to time.
(b) The Building Superintendent shall attend all District meetings,
Board meetings, Board committee meetings, Board workshops and
public hearings as required by the Superintendent of Schools and/or
the Board of Education.
(c) The Building Superintendent agrees to perform all of the duties
that may be required of him to the best of his ability, experience and
talent to the reasonable satisfaction of the Superintendent of Schools
and the Board of Education.
Am. Compl., Ex. A, ¶ 4.
The parties dispute the meaning of paragraph 4(a).15 Plaintiff maintains that the
word "shall" requires the District to allow plaintiff to perform all duties outlined in the civil
service job description. Defendants argue that this paragraph simply requires plaintiff to
perform such duties and does not prevent them from restricting his duties.
Whether a contract provision is ambiguous is a question of law to be decided by a
court. Mellon Bank, N.A. v. United Bank Corp. of N.Y., 31 F.3d 113, 115 (2d Cir. 1994).
The contract's language is ambiguous "if it is capable of more than one meaning when
15
This appears to be the only paragraph that is currently disputed. The parties do not m ention
the contract's term ination clause that was the subject of debate at the m otion for judgm ent on the
pleadings stage.
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viewed objectively by a reasonably intelligent person who has examined the context of the
entire integrated agreement." Sayers v. Rochester Tel. Corp. Supplemental Mgmt.
Pension Plan, 7 F.3d 1091, 1095 (2d Cir. 1993) (internal quotation marks omitted). If the
contract is deemed ambiguous, and there is relevant extrinsic evidence related to the
parties' intent, the provision's interpretation "becomes a question of fact and summary
judgment is inappropriate." Mellon Bank, N.A., 31 F.3d at 116.
Paragraph 4(a) is not ambiguous. Its heading clearly announces that what follows
are the "Building Superintendent's Duties and Responsibilities." Further, subsections (a)
and (b) allow the Superintendent and/or the Board to assign plaintiff additional duties as
needed and require him to attend meetings. The contract thus contemplates discretion on
the part of the administration with respect to plaintiff's employment responsibilities. There
is nothing in the contract prohibiting the District from limiting plaintiff's duties. Therefore,
defendants' interpretation is the only reasonable one.16
However, whether plaintiff breached paragraph 4(c) of the contract by failing to
perform his duties "to the best of his ability, experience and talent to the reasonable
satisfaction of the Superintendent of Schools and the Board of Education" is an issue of
material fact to be decided at trial. If it is ultimately determined that plaintiff did breach the
contract, then his claim that defendants breached the contract thereafter by failing to
provide mandated salary increases and longevity payments would be without merit. If, on
the other hand, it is determined that he did not breach the contract, then he is entitled to
16
Accordingly, Fehlhaber cannot seek direct dam ages for the loss of specific job duties.
However, the significant decrease in job responsibilities rem ains relevant to the stigm a-plus claim with
regard to the alleged conspiracy to isolate plaintiff, decrease his effectiveness, and abolish the need for
his position altogether.
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damages for the loss of contractually-mandated annual pay increases and longevity
payments.
Accordingly, both parties' motions for summary judgment will be denied as to the
breach of contract claim.
G. Defamation (against Willis only)
Fehlhaber asserts that the following four statements made by Willis were
defamatory:
(1) "The job was not being done correctly before, I don't want the district going
back to a position where the work is not being done correctly."
(2) "We'll structure the department to ensure all work is performed correctly.
Maybe the job duties were too broad and maybe that's why (Fehlhaber) failed."
(3) "It was shoddy workmanship and borderline criminal behavior. Weren't you
responsible for this? I don't give a God damn about statutes of limitations, I am going to
have this investigated."
(4) "No one in the District has confidence in you."
In New York, the elements of a defamation claim include: (1) a false and
defamatory statement of fact; (2) regarding plaintiff; (3) published to a third party; (4) made
with "the applicable level of fault on the part of the speaker"; and (5) causing harm to the
plaintiff or amounting to defamation per se. Albert v. Loksen, 239 F.3d 256, 265–66 (2d
Cir. 2001). Even an expression of opinion becomes actionable if the overall context of the
statement "implies that it is based upon facts which justify the opinion but are unknown to
those reading or hearing it." Steinhilber v. Alphonse, 68 N.Y.2d 283, 289–90 (1986).
Where, as here, the plaintiff is a public figure, he must show by clear and convincing
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evidence that the statement was made with "'actual malice'—that is, with knowledge that it
was false or with reckless disregard of whether it was false or not." New York Times Co.
v. Sullivan, 376 U.S. 254, 279–80, 84 S. Ct. 710, 726 (1964); Shulman v. Hunderfund, 905
N.E.2d 1159, 1161, 12 N.Y.3d 143, 147 (2009).
Defamation per se contemplates statements reasonably understood as imputing,
inter alia, incompetence, unfitness to perform one's profession, or criminal activity. Ives v.
Guilford Mills, Inc., 3 F. Supp. 2d 191, 200 (N.D.N.Y. 1998) (Kahn, J.); Epifani v. Johnson,
65 A.D.3d 224, 234 (N.Y. App. Div. 2d Dep't 2009). As the above statements call into
question Fehlhaber's ability to competently perform his professional duties and imply that
he engaged in criminal activity, the final element of the defamation claim is met as a
matter of law.
1. Statements #1 and #2
In his deposition, Willis acknowledged the accuracy of the first two statements,
which were quoted in a February 18, 2009, newspaper article. As noted in the October
29, 2010, Memorandum–Decision and Order, an average reader would consider these
statements, uttered by the District Superintendent, as fact. As the Superintendent, it is
implicit that Willis's remarks concerning whether plaintiff was performing his job correctly
are based on facts unknown to the average reader. Willis instead asserts that these
statements were neither false nor uttered with actual malice. He specifically argues that
because plaintiff was found guilty of six infractions, he failed to perform the job correctly.
When asked during his deposition whether anything in statement #2 was false,
plaintiff replied "No. No." Fehlhaber Dep. 153:22–24. However, in his motion papers and
at oral argument, plaintiff disputes the truth of these statements. He notes that the
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hearing officer only found him guilty of six violations and claims that Willis's statements
falsely imply that plaintiff performed all aspects of his job incompetently. He also points
out the lack of any negative employment evaluations prior to the section 75 hearing.17
Plaintiff thus concludes that the statements implying he failed to perform his job
competently must be false and uttered with actual malice as part of a conspiracy to
terminate his employment and tarnish his public reputation. Also supporting plaintiff's
claim that Willis spoke with reckless disregard for the truth is the fact that the statements
were uttered only shortly after Willis began his tenure as Superintendent and on plaintiff's
first day back, before any working relationship had formed between them.
This dispute presents an issue of material fact as to whether statements #1 and #2
are false and were uttered by Willis with actual malice. Accordingly, both motions for
summary judgment will be denied as to these statements.
2. Statement #3
Willis argues that he is entitled to summary judgment on this statement, which was
allegedly uttered at an August 2009 meeting, because it was not included in plaintiff's
August 12, 2010, notice of claim. In response, plaintiff simply asserts that the March 27,
2009, notice of claim put defendants "generally on notice" of his defamation claim. This
does not excuse his failure to include Willis's subsequent statement in a later notice of
claim. Even if the statement was included in the August 12, 2010, notice of claim, it would
be untimely because the notice was filed one year after the claim accrued. See N.Y.
17
Plaintiff also notes that W illis, in his deposition, acknowledged that plaintiff com petently
com pleted all tasks W illis assigned to him after his return in February 2009. However, the allegedly
defam atory statem ents were printed in a newspaper article the day after plaintiff's first day back. Plaintiff's
subsequent professional com petence is irrelevant to the issue of whether W illis's prior statem ents were
false.
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EDUC . LAW § 3813(1) (no action may be brought against an officer of a school district
unless it was first presented to the district's governing body within three months after
accrual of such action).
Accordingly, Willis will be granted summary judgment as to this statement.
3. Statement #4
Willis asserts that he never uttered this statement, which plaintiff claims was made
during a February 17, 2009, meeting. During his deposition, plaintiff consulted seven
pages of handwritten notes he took during this meeting and conceded that these notes
only indicated that Willis expressed his trust in Delia—not that he specifically voiced his
distrust in plaintiff. Fehlhaber Dep. at 127–28. Plaintiff's notes did not specifically reflect
statement #4 or any other comment implying a lack of confidence in plaintiff on behalf of
everyone in the District. By expressing his faith in Delia, Willis was not making a
statement about plaintiff. Further, Willis's deposition indicates that he did in fact have
confidence in Delia, rendering this statement true. This negates the first two elements of
plaintiff's defamation claim. Plaintiff therefore fails to point to evidence in the record
establishing an issue of material fact for trial.
Accordingly, Willis will be granted summary judgment as to this statement as well.
IV. CONCLUSION
There remains an issue of material fact as to whether the public statements made
by defendants were stigmatizing and, if so, were published in connection with Fehlhaber's
termination. Plaintiff received adequate notice that his employment position would be
formally abolished, yet failed to protest or request a pre-termination hearing. Nor did he
request a post-termination hearing. Although he initiated an Article 78 hearing after his
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employment was terminated, plaintiff did not challenge the abolishment of his position.
Further, defendants only sought to restrict plaintiff's speech that was borne out of his
professional, official duties.
With respect to the state claims, there remains an issue of material fact as to
whether plaintiff materially breached the contract by failing to perform his duties in
compliance with the employment agreement. Moreover, issues of fact exist with regard to
the two allegedly defamatory statements uttered by Willis and printed in the newspaper.
Therefore, it is
ORDERED, that
1. Defendants' motion to strike portions of plaintiff's attorney affirmations is
DENIED;
2. Plaintiff's motion for summary judgment is DENIED in its entirety;
3. Defendants' motion for summary judgment is GRANTED in part and DENIED in
part;
4. The federal due process and free speech claims are DISMISSED with prejudice;
and
5. The following claims remain for trial: (1) federal stigma-plus; (2) state law
breach of contract; and (3) state law defamation against defendant James Willis related to
the two statements that appeared in the Observer–Dispatch newspaper on February 18,
2009.
IT IS SO ORDERED.
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Dated: July 3, 2012
Utica, New York.
The trial in this matter will begin with jury selection on Tuesday, August 14, 2012, at 9:30
a.m. at the United States Courthouse, 10 Broad Street, Utica, New York. All pre-trial
paperwork must be filed on or before Friday, August 3, 2012, at 12:00 noon.
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