The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Craig Fehlhaber ("plaintiff" or "Fehlhaber") brings this employment discrimination action against the Board of Education of the Utica City School District ("District") and Superintendent of Schools, James Willis ("Willis"), seeking $1 million in damages. Plaintiff alleges seven causes of action as follows: (1) deprivation of a liberty interest in his reputation; (2) violation of due process; (3) restraint on his right to free speech; (4) breach of contract; (5) defamation by Willis; (6) injurious falsehood by Willis; and (7) attorneys' fees for the instant litigation and the prior Section 75 administrative proceeding.
Defendants have filed a 12(b)(6) motion to dismiss all but the free speech and attorneys' fees claims. Because this motion was filed eight months after defendants' responsive pleading, the motion is construed as one for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). The standard for granting a 12(c) judgment on the pleadings is "identical" to that of a 12(b)(6) motion to dismiss. Id. Therefore, the following factual assertions made in Fehlhaber's complaint must be accepted as true. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733 (1964).
Fehlhaber has been employed by the District since March 1998 and was permanently appointed to the position of Superintendent of Buildings and Grounds on March 26, 2002. On July 12, 2006, the parties entered into a written employment agreement. See Dkt. No. 1, Ex. A. A plan to terminate plaintiff's employment was conceived and implemented by a Board member and three District administrators in 2006 and early 2007. In December 2006, the Board member held a press conference concerning a new capital project. During this conference, he waved a newspaper article regarding a previous District project that was tainted by a state investigation and vowed to prevent a "repeat performance." This act impliedly defamed Fehlhaber, who was widely known to be actively involved in the previous project.
Despite having no prior negative evaluations in his personnel file, Fehlhaber was suspended from his position on April 12, 2007, and charged with approximately 160 specific instances of misconduct pursuant to New York Civil Service Law. A Section 75 hearing was held over the course of 16 months-from May 2007 through August 2008. In a written decision dated December 27, 2008, the hearing officer found plaintiff guilty of six violations and recommended that he remain suspended until February 17, 2009. Plaintiff did not pursue an Article 78 challenge to this administrative hearing.
The defendants "completely fabricated" the charges brought against Fehlhaber, "hand-picked" a biased hearing officer, refused to comply with subpoenas, withheld relevant exculpatory evidence, destroyed electronic mail, falsely testified, and intentionally prolonged the hearing in an effort to exhaust his financial and emotional resources. During plaintiff's suspension, he did not receive the annual longevity payment of $1,800 nor the annual pay raise required by the employment agreement.
Upon returning to his position on February 17, 2009, Fehlhaber's office was relocated to a former storage closet without a telephone, he was no longer provided with a vehicle or keys to the buildings he was charged with inspecting, his responsibilities were significantly reduced, and he was forced to share duties with another employee. Further, Willis ordered him not to speak with anyone but his secretary without prior approval from Willis. Plaintiff faced harassment from Willis in retaliation for speaking at Board meetings.
Willis has made disparaging statements to plaintiff in the presence of others. Such comments include: (1) "no one in the District has confidence in you"; (2) "as far as I'm concerned, some of the charges you were charged with you should have been fired. I'm very uncomfortable with you handling these things"; and (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."
Additionally, Willis is quoted in the press claiming that: (1) he "looked at areas [Fehlhaber] was found guilty of and adjusted his duties"; (2) "it's at my discretion as to whether I have him do those duties"; (3) "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 (4) plaintiff "failed" to perform his job properly in the past. See Dkt. No. 1, Exs. B & C.
As noted above, the defendants have moved to dismiss five of the seven causes of action in the complaint. Defendants are not seeking dismissal of the third cause of action for restraint on plaintiff's freedom of speech nor the seventh cause of action regarding attorneys' fees. Dkt. No. 29.
A. First Cause of Action: Violation of Liberty Interest
Plaintiff's claim that he was deprived of a liberty interest in his reputation without due process has been labeled a "stigma-plus" claim. Monserrate v. New York State Senate, 599 F.3d 148, 158 (2d Cir. 2010). 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 is capable of being proved false, and plaintiff claims it is false; (3) the statement was made public; and (4) the statement was made "in the course of a discharge or significant demotion." Hennigan v. Driscoll, No. 5:06-CV-426, 2009 WL 3199220, at *6 (N.D.N.Y. 2009) (Scullin, J.).
The final element constitutes the "plus" part of the claim. Courts have required a "significant alteration of plaintiff's employment status" in order to show the plus factor.
Patterson v. City of Utica, 370 F.3d 322, 332 (2d Cir. 2004). Patterson, who was rehired two weeks after being terminated, did not have standing for a stigma-plus claim because "his time off the job is more analogous to a suspension than a termination of employment." Id.; see also Dobosz v. Walsh, 892 F.2d 1135, 1140 (2d Cir. 1989) (plaintiff who was reinstated after a five-month suspension did not suffer "a related alteration of his legal status" to give rise to a protected liberty interest); Ethier v. City of Cohoes, No. 1:02-CV-1584, 2006 WL 1007780, at *5 (N.D.N.Y. 2006) (McAvoy, J.) (suspended police officer failed to show the deprivation of a tangible interest because he "was not terminated from his employment").
Although Fehlhaber can arguably satisfy the first three elements by pointing to the Board member's press conference and Willis's statements*fn1 , he was never discharged or significantly demoted. Plaintiff fails to explain how, or cite any case law to support his claim that, a reduction in employment duties equates to being "significantly demoted" for purposes of a stigma-plus claim. Therefore, he cannot satisfy the fourth element of this cause of action.
Accordingly, plaintiff's stigma-plus claim will ...