Former law professor’s claim OK to proceed

A federal court will not relinquish its jurisdiction in favor of a parallel action pending in state court in a case brought by a former SUNY Buffalo Law School professor against the school’s dean and another administrator.

U.S. District Judge Richard J. Arcara has denied dismissal motions of defendants Dean Makau W. Mutua and Charles P. Ewing, chair of the faculty Grievance Committee, but also dismissed claims of former professor Jeffrey Malkan for back and future pay.

Malkan is represented by Frederic D. Ostrove of Leeds Brown Law PC in N assau County who could not be reached for comment. Mutua and Ewing are represented by David J. Sleight of the state attorney general’s office in Buffalo, who said he cannot comment on pending litigation.

Malkan claims he was wrongfully terminated in 2009 and denied his rights to due process under the Fourteenth Amendment because he was not allowed to consult with faculty and have Mutua’s decision reviewed.

Mutua and Ewing moved to stay the federal claim, saying it duplicated another claim Malkan filed in the New York State Court of Claims, but Judge Arcara disagreed, ruling they overlooked “some substantial differences.”

Malkan, according to court papers, joined the faculty in June 2000 as a clinical associate professor and director of the Legal Research and Writing program. In 2006, he was promoted to clinical professor by then-Dean R. Nils Olsen and signed a three-year contract with a two-year “administrative extension.” SUNY policies only permit three-year contracts, even though the American Bar Association accreditation standards require accredited law schools to grant five-year contracts for full professors.

“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,’” Judge Arcara wrote in his 24-page decision. “It specifically promised that ‘the dean will extend your contract for two years, or from Sept. 1, 2009 to Aug. 31, 2011, to provide the five-year contract term mandated by the ABA.’”

Shortly after Mutua was appointed interim dean on March 13, 2008, he dismissed Malkan as director of the Legal Research and Writing Program, which was being discontinued, and refused to discuss the matter with him. Malkan continued teaching as a clinical professor for another six months until he was notified by Mutua, who was dean by then, that his contract would expire at the end of the next academic year and would not be renewed.

In January 2009, Malkan filed a protest with the law school’s faculty Grievance Committee on the ground Mutua refused to consult with the faculty Committee on Clinical Promotion and Renewal regarding his reappointment as clinical professor. Malkan claimed Mutua lacked authority to terminate him for cause without a recommendation from the committee.

Malkan further accuses Ewing of not forwarding the unaddressed protest to the faculty, as required by the committee chair.

The initial three-year contract expired and Malkan’s employment was terminated on Sept. 1, 2009. Prior to that, in January of 2009, Malkan had brought a breach-of-contract claim against SUNY in state Court of Claims.

Malkan claimed his contract was good for five years, but SUNY, Judge Arcara noted, said his employment contract did not extend beyond the three years, “no matter what the ABA accreditation standards may require” and that the dean lacked authority to extend it beyond that. That action is still in pre-trial discovery.

On the stay request, Judge Arcara said the reasons a federal court may surrender its jurisdiction to a parallel state court action must “far outweigh” its obligations. He cited Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 813, 817 (1976) and Woodford v. Cmty. Action Agency of Greene Cnty Inc., 239 F.3d 517, 522 (2nd Cir. 2001).

“Moreover, as a threshold matter, a stay of this federal action can be entered only if this action is genuinely parallel to plaintiff Malkan’s New York State Court of Claims action,” he wrote, citing Colorado River at 818 and Dittmer v. Cnty. Of Suffolk, 146 F.3d 113, 118 (2nd Cir. 1998). “Key issues in both the federal civil rights action and state breach-of-contract action will depend upon the construction of plaintiff Malkan’s employment contract.”

Judge Arcara further noted a ruling against Malkan in the state claim would not necessarily preclude federal court from finding Malkan has a viable property interest in continuing his employment with the state.

He found the two cases are not duplicative; that they differ in a number of aspects including witnesses and evidence relevant to the property interest and due process issues in the federal civil rights action will not be relevant to the state breach-of-contract issues. Also, Mutua and Ewing are not parties to the state claim, but are being sued individually and could face liability without the protection of the state’s sovereign immunity.

“The court finds the defendants fail even to make the preliminary threshold showing that is necessary to warrant the court’s consideration of the defendants’ exceptional-circumstances motion for a stay,” Judge Arcara found, denying the stay request.

He found moot Mutua and Ewing’s motions to dismiss Malkan’s request for compensatory and punitive damages against them in their official capacities, saying Malkan’s complaint is not seeking such.

Judge Arcara also dismissed Malkan’s equitable pay claim, but let stand his claim for reinstatement, saying it is not barred by the Eleventh Amendment, which protects state officials from civil suits for actions taken in their official capacities.

He found the request for equitable relief in the form of back and future pay would impose a monetary liability on the state treasury so it is barred by the doctrine of sovereign immunity and the Eleventh Amendment. Judge Arcara acknowledged reinstatement would also affect the state’s treasury, but said it is allowed as prospective relief permitted under an Ex Parte Young, 209 U.S. 123 (1980) exception to a state’s sovereign immunity and therefore not barred by the Eleventh Amendment.

Judge Arcara also rejected Mutua and Ewing’s motion to dismiss Malkan’s claim for punitive damages in general, ruling Malkan’s allegations support such.

“The broken promises alleged by plaintiff Malkan are not directly relevant to the plaintiff’s claim for punitive damages for violations of his rights to due process,” Judge Arcara wrote. “But, those allegations, along with the allegations of defendant Mutua’s stonewalling of the plaintiff’s various attempts to seek redress, together support a reasonable inference that defendant Mutua was determined to resist mandatory law school faculty consultation and review of the plaintiff’s termination in order dismiss the plaintiff from the faculty no matter what.”

With respect to Ewing, he found “it plausible” his refusal to address Malkan’s protest and report it to faculty was the result of Mutua’s refusal to cooperate with the Grievance Committee, but that Malkan “adequately alleges that defendant Ewing’s actions recklessly or callously denied the plaintiff the procedural protections to which he was entitled.”

In conclusion, Judge Arcara referred the case to a U.S. magistrate judge for the Western District of New York to determine the merits of the factual and legal issues presented and prepare for him a report of proposed findings of fact, if appropriate, and recommendations for the disposition of any motions in the case.