The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM--DECISION and ORDER
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.*fn1 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.
Unless otherwise noted, the following facts are undisputed. Fehlhaber began working as the Superintendent of Buildings and Grounds for the Utica City School District ("the District") in March 1998 and was permanently appointed to this position on March 26, 2002.*fn2 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 late-2006 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.*fn3
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 2008.*fn4 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.*fn5 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.*fn6
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 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 Muller*fn7 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 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.
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.
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 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.*fn8 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 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 name-clearing hearing.*fn9
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 bright-line rule, eight months is too attenuated for purposes of a stigma-plus claim. See Martz v. 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).*fn10
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 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.
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 ...