The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Peggy Mousaw ("plaintiff" or "Mousaw") filed the complaint in this action on September 24, 2007. She filed an amended complaint on March 31, 2008.
Plaintiff's First Cause of Action alleges that all defendants violated her First Amendment right to free speech. Her Second Cause of Action alleges that all defendants retaliated against her for her speech on matters of public concern. Her Third Cause of Action, against school board members Stephen Knight ("Knight"), Jeffrey Angleberger ("Angleberger"), Sharon Andrews ("Andrews"), Susan Collins ("Collins"), Shelli Prespare-Weston ("Prespare-Weston"), and Lawrence Peck ("Peck"); school superintendent Martin Bregg ("Superintendent Bregg"); school business manager and treasurer David White ("White") (collectively "school defendants"); clerk of the works Jeffrey Bristol ("Bristol"); and school board attorney Andrew Silver, Esq. ("Attorney Silver"), alleges defamation, libel, and slander pertaining to Bristol's sexual harassment charges against Mousaw. Her Fourth Cause of Action alleges defamation, libel, and slander by Bristol related to his accusations that plaintiff was a prostitute. Her Fifth Cause of Action alleges that White libeled and slandered her when he accused her, at an open board meeting, of "stealing" the school district's insurance binder. Finally, plaintiff's Sixth Cause of Action, against Bristol, alleges libel and slander related to his accusing plaintiff of breaking and entering a school construction trailer.
Defendants Board of Education of Colton Pierrepont Central School District (the "Board"), Knight, Angleberger, Andrews, Collins, Prespare-Weston, Peck, Bregg, and White moved for summary judgment. Defendants Silver and Bristol each separately moved for summary judgment. Plaintiff opposed all motions.*fn1 Oral argument was heard on February 19, 2010. Decision was reserved.
The following facts are undisputed unless otherwise noted.
Mousaw was employed by St. Lawrence County as Deputy Budget Officer beginning in 2001. She was eventually terminated from that position, according to her, as a result of defendants' conduct as outlined below.
Mousaw was elected to the Board in May 2003, to serve a term as one of its members from July 30, 2003, to June 30, 2007. In the spring of 2003 the Board approved a capital construction project over Mousaw's objections. She continued to question the project, sought information through New York State's Freedom of Information Law ("FOIL") when her attempts to obtain it through the Board failed, and publicly criticized the project. She was very vocal and outspoken throughout her tenure on the Board regarding various issues, most notably the capital construction project.
In the spring of 2005 the School hired Bristol as clerk of the works of the capital construction project. In February 2006 Bristol made a formal complaint to the School District alleging that on October 27, 2005, plaintiff had sexually harassed him. The sexual harassment complaint Bristol made alleges that Mousaw grabbed his crotch and held on while stating that "this is what I want." According to the harassment complaint, plaintiff then went into another room to review some documents. A few minutes later Mousaw turned to the door to leave, and, while looking at Bristol's crotch, said "Before this is over, I'll have those on a grill." According to Bristol's complaint, he made the formal complaint, months after the alleged incident, because he was concerned that Mousaw's continued criticisms of him and repeated FOIL requests regarding the capital construction project could damage his reputation. According to Bristol, plaintiff's criticisms and FOIL requests stemmed from the October 27, 2005, incident.
On February 17, 2006, Superintendent Bregg hired an outside firm, PSHR,*fn2 to conduct an investigation into Bristol's allegations against Mousaw. PSHR conducted an investigation. During the investigation, Bristol told the PSHR investigator that he had been told by Mousaw's sister that Mousaw had been a prostitute years before in New York City. This was reflected in the investigator's notes but it was not included in the report. Plaintiff did not cooperate in the investigation.
Shortly after the sexual harassment charge was lodged and the investigation was initiated, Superintendent Bregg informed the executive council of the teachers' association (comprised of five teachers) and the two school principals about the charge. He explained that an investigator may request an interview with staff or teachers, for which union representation could be requested.
In April or May 2006, Superintendent Bregg heard plaintiff on a local radio broadcast. She was identified as a member of the Board and as Deputy Budget Director for St. Lawrence County (the "County"). Superintendent Bregg telephoned Mousaw's supervisor, County Administrator Don Brining ("Brining") and told him about the radio broadcast, and that the school had received a sexual harassment complaint against plaintiff. Brining inquired if the complaint was made by a male or a female. According to Superintendent Bregg, he answered that the complaint was made by a male, and the conversation concluded.
As president of the Board, Knight scheduled Board meetings and committee meetings. Whenever he set a meeting for down for a Monday, plaintiff complained that she could not attend due to her work responsibilities with the County. After Mousaw publicly complained that Knight purposely scheduled meetings on Mondays to exclude her, Knight contacted Brining to inquire whether Mousaw was required to attend County meetings on Mondays. Brining responded that plaintiff need not attend the Monday County meetings unless specifically directed to do so. Knight is unsure of when this conversation with Brining occurred, but believed it was before the sexual harassment charges were made.
Similarly, Knight could not remember when he made a telephone call to Jane Powers ("Powers") regarding an article in the newspaper reporting comments Mousaw had made about tax assessment issues at a town meeting. Powers responded that she had met with plaintiff and corrected some of her misstatements. Again, plaintiff contends that this contact was for a nefarious purpose regarding her employment with the County, but has adduced no evidence to support her contention.
Again, Knight could not recall when he had conversations with a County Legislator whose name he does not know ("legislator") and with County Legislator Tedra Cobb ("Cobb"). The legislator said something about having fun in Colton with all the publicity surrounding plaintiff. Cobb, with whom Knight served on a board, made comments regarding issues that were reported in the newspaper. Neither the legislator nor Cobb specifically mentioned the sexual harassment complaint. As with his conversations with Brining and Powers, Mousaw alleges that these were done to undermine her position with the County, but has presented no evidence in support.
Knight also had contact with a few other County employees after Bristol's harassment charges were made. He spoke with County Treasurer Bob McNeil ("McNeil"), who made several comments about what was happening with the Board, and all the articles in the newspaper. They made small talk, and that was the end of the conversation, according to Knight. Knight was approached by Julie Deegon ("Deegon") and Francine Peretta ("Peretta"), both department heads at the County, at a golf tournament. According to Knight, they gave him their "condolences" about the publicity surrounding the issues the Board was dealing with regarding plaintiff. Knight's recollection is that these conversations pertained to publicity about Mousaw's criticisms of the construction project, and not about the sexual harassment complaint against her. According to plaintiff, Knight made these contacts with County people in order to negatively effect her employment with the County. However, Mousaw has set forth no evidence of this.
In May or June 2006, at a public session of the Board, plaintiff asserts that White accused her of stealing a school insurance binder that she had borrowed. White denies that he accused her of stealing. Rather, according to him, he asked Mousaw to return the insurance binder, which she had borrowed more than one year earlier, to which she responded, "Are you accusing me of stealing?"
PSHR provided its report of the investigation to Superintendent Bregg and Attorney Silver on June 14, 2006. PSHR's report concluded that the sexual harassment complaint had a substantially greater possibility of being truthful than Ms. Mousaw's denials, to the extent that I assert with a high level of confidence that Ms. Mousaw did perform the actions submitted in the complaint, and did engage thereafter in actions that were intended to retaliate against Mr. Bristol for spurning her uninvited and unwelcome advance, and then for lodging the formal complaint against her.
Sch. Defts.' SMF Ex. W at 10 (Doc. No. 139-53). The report was presented to the Board on July 11, 2006, in Executive (non-public) session. After hearing the PSHR report, the Board voted to direct Attorney Silver to draft charges against plaintiff. Attorney Silver did draft charges, and on July 25, 2006, he read the charges to the Board in public session. According to Attorney Silver, his reading of the law, including Public Officers Law §§ 103 and 105, required reading the charges publicly, because if the Board voted to go forward it would require expenditure of funds. The Board voted to proceed with removal charges against Mousaw, set a date for an administrative hearing, and appointed a hearing examiner.
At the next Board meeting, in early August 2006, the Board voted to approve the minutes from the July 25, 2006, meeting, over plaintiff's objections. The minutes included the detailed charges against plaintiff, including the accusation that she grabbed Bristol's crotch. Plaintiff requested that the Board hold off on posting the minutes on the school's website, as her attorney and Attorney Silver had agreed that the minutes would include a less graphic description of the charges. Despite Mousaw's request, the Board posted the approved minutes on the school's website.
An administrative hearing was held on January 11, 2007, and continued on March 16, 2007. In May 2007, plaintiff lost her re-election bid, and her tenure as a member of the Board ended as of June 30, 2007. As a result, the administrative hearing pertaining to the sexual harassment charges against ...