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David O'neill, Plaintiff-Petitioner-Appellant v. New York University

May 8, 2012


Plaintiff-petitioner appeals from an order and judgment (one paper) of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 29, 2011, which denied the petition seeking, inter alia, to vacate respondents' termination of his employment, and dismissing this hybrid plenary action and CPLR article 78 proceeding pursuant to CPLR 3211(a)(1) and (7).

The opinion of the court was delivered by: Moskowitz, J.

O'Neill v New York Univ.

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 8, 2012

Richard T. Andrias,J.P. John W. Sweeny, Jr. Karla Moskowitz Dianne T. Renwick Helen E. Freedman, JJ.


In this appeal, plaintiff-petitioner (petitioner), a research scientist, alleges that he reported suspected research misconduct of a colleague to his superiors who, in turn, fired him in retaliation. The motion court denied his petition to vacate respondents' termination of his employment and dismissed this hybrid plenary action and CPLR Article 78 proceeding pursuant to CPLR 3211(a)(1) and (7). We unanimously modify to reinstate the causes of action based on retaliation and failure to follow disciplinary procedures.

According to the complaint, in July 2002, respondents New York University, NYU Hospitals Center and NYU Langone Medical Center (NYU) hired petitioner Dr. David O'Neill as a non-tenured, full-time faculty member, with an annual starting salary of $140,000 pursuant to an offer letter. NYU's Faculty Handbook provided that appointment to non-tenured faculty positions "shall be for a definite period of time, not exceeding one academic year unless otherwise specified."

NYU renewed petitioner's appointment annually. As recently as February 23, 2010, NYU confirmed his appointment for the 2009-2010 academic year from September 1, 2009 through August 31, 2010 in a renewal letter. The offer letter provided that petitioner's appointment with NYU was "contingent upon continued employment in good standing with the [NYU] School of Medicine and compliance with all University and School of Medicine rules and regulations and other contractual obligations."

These rules and regulations included NYU's Faculty Handbook, containing its Code of Ethical Conduct (the NYU Code of Ethics) and policies related to research misconduct (the Research Misconduct Policies), and the NYU Langone Medical Center Code of Conduct (NYU Code of Conduct), containing its Non-Intimidation/Non-Retaliation Policy (the Non-Retaliation Policy).

The NYU Code of Ethics states that "[e]ach member of the University is expected to uphold the standards of [NYU] and to report suspected violations of the Code or any other apparent irregularity." The Research Misconduct Policies define "research misconduct" as including "fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results." The NYU Code of Conduct elucidates as follows: "Every member of the Medical Center has an obligation to report situations or activities that are -- or even seem to be -- violations of the Code. If something concerns you but you are not sure whether it is a violation of the Code, you must raise the concern and ask for advice." The Non-Retaliation Policy states that "[t]he Medical Center promises that there will be no retaliation against you if you raise concerns or questions about misconduct or report violations of this Code."

The Faculty Handbook also contains NYU's disciplinary policies that include its General Disciplinary Regulations Applicable to both Tenured and Non-Tenured Faculty Members and the Faculty Grievance Procedures. The Disciplinary Regulations apply "where a question arises concerning an alleged violation by any member of the faculty of a rule or regulation of [NYU]" and specify whether the dean or a faculty committee addresses each question. The Grievance Procedures provide a mechanism for NYU faculty members to "seek redress of their grievances."

Petitioner's appointment with NYU included his duties as Assistant Director of the Vaccine/Cell Manipulation Core Laboratory for the NYU Cancer Institute or the Vaccine Lab. His supervisor was Dr. Nina Bhardwaj. She reported to Dr. William Carroll, the Director of the Cancer Institute. In 2004 and 2005, petitioner oversaw the construction of the Vaccine Lab. The lab's first major project was a clinical trial, that Bhardwaj designed, comparing a new and relatively expensive "dentritic cell" vaccine for malignant melanoma (skin cancer) with an inexpensive, decades-old mineral oil "Montanide" vaccine. The research team included petitioner and Bhardwaj as well as other staff members. Bhardwaj was the co-inventor and patent holder of the dendritic cell vaccine. The clinical trial also required the research team to write and submit a research paper to a scientific journal. Bhardwaj named petitioner as lead author of the paper.

It is undisputed that the clinical trial results showed that the dendritic cell vaccine was less effective than the Montanide vaccine. Throughout the clinical trial and for months thereafter, the research team exchanged e-mails and letters and held conferences on the clinical study. During this time, petitioner believed that Bhardwaj was attempting to shape the written and oral presentation of the clinical trial results in an unethical manner to downplay and distort the negative findings about the dendritic cell vaccine.

In March 2009, the American Society of Clinical Oncology (ASCO) invited petitioner to present the results of the clinical trial at its June 2009 meeting. Although ASCO's rules require that the lead author present, Bhardwaj demanded that she present. Despite this, petitioner presented. Carroll thereafter recommended ...

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