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July 1, 1993

JEFFREY M. BLUM, Plaintiff,
JOHN H. SCHLEGEL, et al., Defendants.

The opinion of the court was delivered by: WILLIAM M. SKRETNY




 Docket No. 91-CV-633S





A. First Amendment Claim - Objections and Contentions
B. Preliminary Injunction
1) Irreparable Harm
a) First Amendment
b) Eleventh Amendment Immunity/Qualified Immunity Argument
c) Destruction of Professorial Career Argument
2) Likelihood of Success on the Merits - First Amendment Claim.
a) Protected Speech
b) Adverse Employment Decision
c) Motivating Factor
3) Liklihood of Success on the Merits - Due Process Claim
a) "Untimeliness" Claim
b) "Arbitrariness" Claim
4) Sufficiently Serious Question/Balance of Hardships




 Pursuant to 28 U.S.C. § 636(b)(1)(B) this Court referred all dispositive motions in the above captioned case to the Hon. Carol E. Heckman, United States Magistrate Judge for the Western District of New York for report and recommendation. On December 14, 1992, Magistrate Judge Heckman filed her Report and Recommendation to plaintiff's motion for preliminary injunction.

 On December 28, 1992, plaintiff filed "Objections to Magistrate [Judge] Heckman's Report and Recommendation on Plaintiff's Motion for Preliminary Injunction" ("pl. obj."). Defendants filed a "Memorandum in Response to Plaintiff's Objections to Magistrate Judge's Report and Recommendation on Plaintiff's Motion for Reinstatement" ("def. memo.") on January 4, 1993. Plaintiff filed a "Reply to Defendants' Response to Plaintiff's Objections to Magistrate [Judge] Heckman's Report andRecommendation [sic] on Plaintiff's Motion for Preliminary Injunction" ("pl. reply") on January 19, 1993.

 Oral argument on plaintiff's objections was heard by this Court on February 19, 1993.

 28 U.S.C. § 636(b)(1)(B) provides that a district judge may designate a magistrate judge to submit proposed findings of fact and recommendations for the disposition of dispositive motions. 28 U.S.C. § 636 (b)(1)(C) permits the parties to file and serve written objections to such proposed findings and recommendations. Upon the filing of timely objections by a party, the district court's review of a report and recommendation must be de novo, but only as to those portions of the report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1)(C). See also Collins v. Foreman, 729 F.2d 108, 112 (2d Cir.), cert. denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148 (1984). The district court is not required to conduct a de novo hearing on the matter, but must arrive at its own independent conclusion about those portions of the magistrate judge's report and recommendation to which objection is made. E. River Sav. Bank v. Secretary of Hous. and Urban Dev., 702 F. Supp. 448 (S.D.N.Y. 1988). Following a de novo review, this Court accepts Magistrate Judge Heckman's Report and Recommendation as articulated herein.


 Plaintiff states that "Magistrate [Judge] Heckman's Report selectively summarizes materials from a large factual record . . . [with] the effect of portraying plaintiff in a negative light." (pl. obj. at 42). Plaintiff makes a general objection to the "summary." *fn1" (pl. obj. at 43). Plaintiff also makes numerous references to Magistrate Judge Heckman's "omissions" of evidence and detail from the Report and Recommendation but fails to apprise this Court of objections with any particularity that would allow this Court to determine exactly what plaintiff believes to be "omissions." At several points plaintiff does not dispute the facts as articulated by Magistrate Judge Heckman, but requests that this Court expand on such facts to include his subjective impressions of what he says he thought was occurring at the time. *fn2"

The written objections [to a magistrate judge's report and recommendation] shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objections and shall be supported by legal authority.

 The foregoing is intended as an illustration of the type of "objections" plaintiff makes to factual findings and is by no means exhaustive. It appears that plaintiff does not specifically object to the Magistrate Judge's findings of fact but rather objects only to the application of the facts to the law. In light of the foregoing and following a de novo review of the record, as reflected in this Court's detailed account below, this Court finds Magistrate Judge Heckman's articulation of the facts to be sufficiently accurate and complete. Thus, this Court adopts the facts as set forth in the Report and Recommendation.

 In September of 1985, plaintiff joined the faculty of the State University of New York at Buffalo Law School ("Law School") as an associate professor, which was considered a tenure track position. (Appendix to Complaint ("A") at A-9). Although the record is sketchy as to what transpired from the time plaintiff arrived at the Law School until the culmination of events that prompted this suit, it appears that plaintiff published two articles in the "Generation," a SUNY Buffalo student magazine. Both articles, one published in January 1988 and the other in September 1989, expressed the view that possession or consumption of marijuana should not result in the punishments currently inflicted for such crimes. (Plaintiff's Supplementary Affidavit in Opposition to Defendants' Motion to Dismiss the Amended Complaint and in Support of Plaintiff's Motion for Preliminary Injunction ("pl. supp. aff.") at Ex. K). Plaintiff also participated in a debate relating to the propriety of civil disobedience. (Id.).

 Beginning in July of 1988, plaintiff's colleagues began to express doubts concerning plaintiff's suitability for promotion and tenure. (A-52 - A-61). In response to the doubts expressed, on September 13, 1989, David Filvaroff, then Dean of the Law School, informed plaintiff that his promotion and tenure consideration could be deferred one year. If plaintiff chose not to accept the deferral option, the academic year 1990-1991 would be the year plaintiff would be considered for promotion and tenure. (Supplementary Affidavit in Opposition to Plaintiff's Motion for Reinstatement ("def. supp. aff.") Ex. A). If he were denied tenure, he would be informed that the academic year 1991-1992 would be his last. *fn3" (Id.).

 Apparently, plaintiff's prospects for tenure were not discussed again until Dean Filvaroff called an informal meeting of plaintiff's "committee" on October 1, 1990. (A-11). During this meeting, plaintiff was advised that if he applied for tenure in the near future, it likely would be denied because of "very weak scholarship." (A-11-A-16). Extensive correspondence between plaintiff and certain members of the Law School faculty followed. (See A-11-A-30, A-32-A-51, A-72-A-95, A-100-A-115; def. supp. aff. exs. B - Y).

 Initially, plaintiff's letters expressed "surprise" at the outcome of the October meeting, notwithstanding the fact that as early as July of 1988 plaintiff was informed that the likelihood of his receiving tenure was not as promising as he may have hoped. (A-11-A-16). In a letter to Dean Filvaroff dated October 16, 1990, plaintiff attacked defendants' handling of the October 1, 1990 meeting as highly irregular and requested that his tenure evaluation go forward and be scheduled for March 15, 1991. (Id.).

 In response to plaintiff's October 16 letter, Dean Filvaroff explained that the meeting was convened so that plaintiff could be informed of "the probable outcome of [his] tenure" request, should he make such a request, and to give plaintiff the "choice of not pursuing the matter to a formal determination." (A-17). Dean Filvaroff reminded plaintiff that he had previously been informed that "evaluations of [his] teaching and . . . colleagueship were not uniformly or strongly affirmative" and such criteria were important to any tenure decision. (Id.). These deficiencies possibly could be overcome by a very strong showing in the area of scholarship. (A-17-A-18). Dean Filvaroff acknowledged plaintiff's request for a formal tenure meeting on March 15[, 1991], but suggested that plaintiff may "wish to consider the possibility of deferring . . . tenure consideration until [the] fall [of 1991]." By so deferring, plaintiff could reduce his teaching load by one-half, thereby providing him with "additional time and opportunity to continue work on [his scholarship]." (Id.). Plaintiff responded with yet another letter which stated that he was pleased that Dean Filvaroff favored a "cooperative solution to [the] problems . . ." presented and that deferring promotion until the fall of 1991 "may be a step in the right direction." (A-23). Plaintiff acknowledged that his progress in improving his scholarship had not been as rapid as he had planned and explained that he relied "on the option of coming up for promotion *fn4" [in the fall of 1991] in order to take advantage of the half-load option in the Spring [of 1991] . . ." as suggested by Dean Filvaroff. Plaintiff conditioned full acceptance of the option on two things: (1) obtaining information relating to which courses would be eliminated and (2) the "proper appointment papers" for academic year 1991-1992. Moreover, plaintiff acknowledged that in cases of continued appointment beyond the contract period a confirming letter from the President of the Law School was required to comply fully with the Law School regulations. Plaintiff requested that this confirming letter "extending [his] current contract" to the academic year 1991-1992 be forwarded to him as quickly as possible. (A-24). On November 15, 1990, Dean Filvaroff forwarded a letter to plaintiff stating "I think you have made an appropriate choice in deciding to defer your tenure consideration until next fall. I will, accordingly, proceed with arranging for your appointment for the 1991-92 academic year . . .." On the same day, plaintiff delivered another letter to Dean Filvaroff with a copy of his prior appointment letter and requested a confirmatory letter "identical" to his prior letter of confirmation with the exception that the dates would be changed. (A-25). *fn5" Dean Filvaroff responded by assuring plaintiff that "appropriate Written confirmation of [plaintiff's] status for next year . . ." would be forth coming and that he, Dean Filvaroff, would attempt to relieve plaintiff of his large class but may be able to relieve plaintiff only of his smaller seminar class. (A-28). Dean Filvaroff also stated that he was uncertain how long securing the letter that plaintiff requested would take but that his contract would be extended to cover the 1991-1992 academic year. (A-28). Via letter dated December 21, 1990, Dean Filvaroff stated that

[he] recommend to the Provost that [plaintiff] be reappointed for an additional one-year term beginning September 1, 1991, and extending to August 31, 1992. This will allow you additional time to continue work on your scholarship and allow presentation of your candidacy for promotion and tenure sometime next fall; it is my understanding that this complies with your wishes.
As consideration of your tenure candidacy has been postponed, must, in accordance with the Policies of the Board of trustees, inform you that your employment by the University will terminate on August 31, 1992. This letter constitutes a formal notice of nonrenewal . . .. It can be modified by explicit withdrawal and concurrent notice of further appointment by the President. I want to reassure you, however, that if the decision on your tenure is favorable next fall, this notice will be withdrawn.

 (def. supp. aff. Ex. H).

 In a letter dated January 5, 1991, plaintiff expressed gratitude for the "compromise" that had been reached and stated that he believed the separation of the tenure process from the promotion process was a good idea and expressed confidence that the "promotion review [would be] done in a reasonably normal way." (A-38). Further, he acknowledged the need to set up a new promotion and tenure visiting subcommittee *fn6" for the fall of 1991. (A-39). *fn7"

 Upon receipt of the December 21st letter, plaintiff, via letter to Dean Filvaroff dated January 21, 1991, revealed his belief that his reappointment also would grant him tenure without a formal review. Dean Filvaroff responded to this revelation by unequivocally stating that such an appointment was never offered, explicitly or impliedly. (def. supp. aff. ex. I). Dean Filvaroff also reiterated that he had suggested to the Provost that plaintiff be reappointed for one-year and that it was his understanding that plaintiff's promotion and tenure review would take place in the fall of 1991. The Dean articulated that the only remaining concern was to bring plaintiff's Visiting Committee to full strength. (Id.).

 A February 4, 1991 correspondence from plaintiff to Dean Filvaroff accused the Dean of being "confused" about the offer he actually extended to plaintiff, *fn8" but then goes on to inform the Dean that he had met with Ken Joyce and that he, plaintiff, was pleased with the selection of the new promotion and tenure subcommittee. (def. supp. aff. Ex. K).

 In May of 1991, plaintiff sent several letters attacking the general tenure procedures of the Law School. (A-92-A-105).

 In August of 1991, plaintiff wrote a letter to the President of the Law School, William Greiner, stating that he believed his promotion and tenure process had been concluded in his case. (A-109). Plaintiff based this conclusion on the Faculty and Professional Staff Handbook (1989 edition) which plaintiff interpreted to require a tenure review to be "conducted no later than the sxith [sic] year the candidate holds unqualified rank. In exceptional circumstances, and upon request of the candidate, review may be deferred until the seventh year . . .." (A-109). Plaintiff states in his letter that he did not request nor consent to his tenure review being held in the 1991-1992 academic year and since the 1990-1991 academic year had completed, so must have his promotion and tenure evaluation.

 The Law School took a different position on the alleged completion of plaintiff's promotion and tenure evaluation as is reflected in a September 24, 1991 letter from Law School professor Kenneth Joyce informing plaintiff that his subcommittee was "'ready, willing and able' to go forward with dossier and other preparation for presentation of [plaintiff's] tenure and promotion candidacy to the full Committee," which was scheduled to meet on October 18, 1991. (def. supp. aff. Ex. L). Professor Joyce further explained that he and the subcommittee believed that prior to proceeding, they should obtain plaintiff's approval to proceed as he also had a "right not to be evaluated and voted on by the [Promotion and Tenure] Committee." (Id.).

 Plaintiff responded by filing suit in federal district court here on October 1, 1991, alleging violations of the Fifth and Fourteenth Amendments, denial of academic freedom in violation of the First and Fourteenth Amendments, violations of due process which subjected plaintiff to grievous loss of liberty interest in professional reputation, harassment and retaliatory termination for exercise of his rights under the First and Fourteenth Amendments. On November 6, 1991, Assistant Attorney General Douglas Cream notified plaintiff that the promotion and tenure process would go forward unless plaintiff unambiguously informed him to the contrary. (Notice of Motion Claim No. 83991 Ex. C). On December 16, 1991, Professor Joyce wrote to plaintiff informing him that because he did not unambiguously state whether or not he wanted the promotion and tenure process to proceed, it was the policy of the University to proceed. Plaintiff did not request that his evaluation not go forward and affirmatively discussed proceeding with the evaluation, but requested that the evaluation be postponed until the completion of certain defendants' depositions scheduled for February and March of 1991. (def. supp. aff. Ex. N, O). In response to plaintiff's request to postpone his evaluation until the completion of the depositions in this case, Lee A. Albert, Associate Dean of the Law School warned plaintiff of the consequences of postponing his evaluation at such a late date and reminded plaintiff that his contract was set to expire in six months unless plaintiff were awarded tenure. (def. supp. aff. Ex. T). Associate Dean Albert further explained that under University policies the deadline for submission for review of candidates was April 15, 1992. Consequently, the Law School denied plaintiff's request for a delay. (Id.).

 Following several additional letters reiterating the parties' positions, on April 2, 1992, plaintiff executed a document entitled ...

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