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Jeffrey Malkan v. Makau W. Mutua and Charles P. Ewing

October 3, 2012

JEFFREY MALKAN, PLAINTIFF,
v.
MAKAU W. MUTUA AND CHARLES P. EWING, DEFENDANTS.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

DECISION AND ORDER

Plaintiff Jeffrey Malkan brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants Makau W. Mutua and Charles P. Ewing deprived him of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution. U.S. Const. XIV. Plaintiff Malkan was a Clinical Professor at the State University of New York at Buffalo Law School. Defendant Mutua is the Dean of the Law School. Defendant Ewing is the chair of the faculty Grievance Committee of the Law School.

In his complaint, plaintiff Malkan alleges that defendant Mutua wrongfully terminated the plaintiff's contract as a Clinical Professor on the faculty of the Law School. The plaintiff alleges that defendants Mutua and Ewing intentionally violated his due process rights to pre-termination and post-termination faculty consultation and review of defendant Mutua's termination of the contract.

Defendants Mutua and Ewing have moved to stay this action until a breach of contract action that plaintiff Malkan filed against the State University of New York in the New York State Court of Claims is resolved. The defendants argue that the two cases are duplicative and wasteful.

Defendants Mutua and Ewing have also moved pursuant to Fed. R. Civ. P. 12(b) partially to dismiss plaintiff Malkan's claims. The defendants do not seek dismissal of the due process cause of action in the complaint, and only challenge some remedies sought by the plaintiff. They argue that the remedies are either beyond the Court's subject-matter jurisdiction or are unwarranted by the facts alleged in the complaint. For the reasons stated below, the defendants' motions are denied.

BACKGROUND*fn1

The plaintiff, Jeffrey Malkan, joined the faculty of the State University of New York at Buffalo Law School in June, 2000 as a Clinical Associate Professor and as Director of the Legal Research and Writing Program. On April 28, 2006, plaintiff Malkan was promoted by the dean at the time, R. Nils Olsen, upon the recommendation of the faculty Promotion and Tenure Committee, to the position of Clinical Professor.

Plaintiff Malkan executed an employment contract for the position of Clinical Professor on November 16, 2006. The contract provided for a three-year term of employment, followed by a "mandatory" two-year "administrative extension" to be made at the end of the three-year term. The contract provided that, while American Bar Association ("ABA") accreditation standards required accredited law schools to grant five-year contracts to full professors of the plaintiff's rank, State University of New York ("SUNY") policies, by which the Law School was bound, permitted only three-year contracts. The contract nevertheless provided that it was a "five-year contract," and characterized the two-year extension necessary to make it a five-year contract as "routine[]" and "automatic." It specifically promised that "the Dean will extend your contract for 2-years, or from 9/1/2009-8/31/2011, to provide the 5-year contract term mandated by the ABA."

The November 16, 2006 contract also provided that plaintiff Malkan's appointment as a Clinical Professor could only be terminated "for good cause" in accordance with ABA accreditation standards. It specifically promised:

A change in the structure or staffing of the law school's research and writing program will not equate with "for good cause" to terminate or not renew your contract since your contract as a Clinical Professor is separate from your administrative appointment as Director of Research and Writing. Should your appointment as Director of Research and Writing end, you would still maintain your position as Clinical Professor.

Dkt. No. 12-1, p. 23.

On March 13, 2008, shortly after being appointed interim Dean of the Law School, defendant Makau W. Mutua dismissed plaintiff Malkan as Director of the Legal Research and Writing Program, effective March 14, 2008. The plaintiff's dismissal was ostensibly in connection with termination of the existing Legal Research and Writing Program. Defendant Mutua refused repeated attempts by the plaintiff to discuss the plaintiff's termination as Director of the Legal Research and Writing Program. The plaintiff continued teaching as a Clinical Professor.

However, six months later, on August 28, 2008, defendant Mutua, who was appointed Dean of the Law School in May, 2008, notified plaintiff Malkan by letter that the plaintiff's contract as a Clinical Professor would expire at the end of the next academic year and that the contract would not be renewed. Defendant Mutua stated in the letter that under ABA Standard 405, an instructor was subject to termination upon "termination or material modification" of the clinical program, and that the termination of the Legal Research and Writing program at the Law School met the requirements of Standard 405.

Plaintiff Malkan asked to meet with defendant Mutua about his termination, but defendant Mutua refused. Defendant Mutua later refused similar requests.

In January of 2009, plaintiff Malkan filed a protest with the faculty Grievance Committee of the Law School, which was chaired by defendant Charles P. Ewing. The protest was on the ground that defendant Mutua had refused to consult with the Law School faculty Committee on Clinical Promotion and Renewal ("CCPR") regarding the plaintiff's reappointment as a Clinical Professor. The plaintiff asserted that defendant Mutua lacked authority to terminate the plaintiff's appointment as a Clinical Professor for cause without consulting with and receiving a recommendation from the CCPR. Defendant Mutua refused to consult with the CCPR.

Defendant Mutua also refused to participate in the faculty Grievance Committee's attempts to address plaintiff Malkan's protest that defendant Mutua was terminating the plaintiff without consultation with the CCPR and without a recommendation by the CCPR. Defendant Ewing, as chair of the Grievance Committee, orally acknowledged that the protest was within the Grievance Committee's jurisdiction. As chair of the Grievance Committee, defendant Ewing spoke to defendant Mutua about the plaintiff's termination and protest to the Grievance Committee, but defendant Mutua refused to address the protest through the Grievance Committee. The plaintiff requested that defendant Ewing report the plaintiff's unaddressed Grievance Committee protest to the Law School faculty, as defendant Ewing was required to do as chair of the Grievance Committee, but defendant Ewing refused to do so.

The CCPR convened for its only meeting of the 2008-2009 academic year on April 21, 2009, to discuss the reappointment of two other Law School clinical professors with contracts that were to expire on August 31, 2009. Defendant Mutua refused to allow the CCPR to hear recommendations or to vote on plaintiff Malkan's reappointment. The Grievance Committee did not address the plaintiff's protest after the April 21, 2009 CCPR meeting. On September 1, 2009, the plaintiff's appointment as Clinical Professor terminated, ending his employment relationship with the Law School.

In January of 2009, plaintiff Malkan brought an action against SUNY in the New York State Court of Claims for breach of his employment contract. The plaintiff alleged in the Court of Claims that, by terminating him as a Clinical Professor before the expiration of the five-year term of his contract, SUNY breached the terms of the contract as agreed to on November 16, 2006. The ...


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