malkan rule 56.1 statement (august-24-2014)

1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

-----------------------------------------------------------x

JEFFREY MALKAN,

Plaintiff,

-against- STATEMENT OF UNDISPUTED

FACTS

Docket No: 12-CV-0236 (RJA-HKS)

MAKAU W. MUTUA, in his individual

capacity,

Defendant.

-----------------------------------------------------------x

PLAINTIFFS STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY

Pursuant to Local Rule 56.1, Jeffrey Malkan submits the following Statement of

Undisputed Facts in Support of his Motion for Summary Judgment on the issue of liability for

violation of his right to due process against Makau W. Mutua in his individual capacity, under 42

U.S.C. 1983 (Civil Rights Act of 1871).

REFERENCES TO DOCUMENTS CITED

The Table of Sources to this Statement contains explanatory citations to documents that

are referred to here as well as in the accompanying Memorandum of Law.

TABLE OF CONTENTS

I. Rules and procedures for appointment of SUNY Buffalo Law Clinical Professors

II. Professor Malkans initial appointment, promotion and reappointment, and Contract

III. Makau W. Mutua is appointed Interim Dean by then-Provost Tripathi

IV. Dean Mutuas dismissal of Professor Malkan as Director of LRW

V. Dean Mutuas termination of Professor Malkans faculty appointment

VI. The ABA Site Visit and Reaccreditation

VII. Professor Malkans petition to the Grievance Committee

2

VIII. Satish K. Tripathi is appointed President of SUNY Buffalo

IX. Professor Malkan receives advice and assistance from NYSUT/UUP

X. Professor Malkans unsuccessful attempts to receive a fair hearing on the merits

IX. Professor Malkan alleges that Dean Mutua committed perjury

UNDISPUTED FACTS

I. Rules and procedures for appointment of SUNY Buffalo Law Clinical Professors

Undisputed Fact___________________ _ Evidence _

1. Clinical Professors at SUNY Buffalo Law

School are members of the permanent voting

faculty and entitled to full participation in faculty

governance as well as hiring decisions up to their

rank.

Faculty Bylaws, Ex. K.

2. They are initially hired by the same process as

members of the tenured faculty recommended by the Appointments Committee, approved by a two-

thirds vote of the entire faculty, endorsed by the

Dean and Provost, and appointed by the President.

Faculty Bylaws, Clinical Faculty Appointments

Policy, Ex. K; Mangold Dep., Ex. C.

3. They are protected by ABA Standard 405(c),

which requires accredited law schools to protect

academic freedom by providing security of

employment reasonably similar to tenure.

ABA Standards; ABA Site Visit Report, ABA Site

Visit Findings of Fact; Clinical Faculty

Appointments Policy, Ex. K

4. This requirement may be satisfied either by

continuing appointments or by presumptively

renewable term contracts that are at least five-years

in duration, and revocable only for good cause.

ABA Standards, Ex. K.

5. They initially receive two three-year term

contracts and, in the sixth year of appointment, are

reviewed by the Promotion and Tenure P&T Committee (since spring 2009 called the

Committee on Clinical Promotion and Renewal or

CCPR), which is based on a dossier that documents the candidates teaching, scholarship, and service.

Faculty Bylaws, Clinical Faculty Appointments

Policy, Ex. K.

6. The recommendation of the P&T Committee

must then be endorsed by the Dean and the Provost,

after which the President issues a Letter of

Mangold Dep., Ex. C; Olsen Dep., Ex. G.

3

Appointment.

7. The Dean draws up a contract for the newly-

promoted Clinical Professor that specifies the terms

and conditions of employment, which may include

teaching assignments and salary.

Mangold Dep., Ex. C; Olsen Dep., Ex. G, Mutua

PERB testimony, Ex. A.

8. The Law Schools rules and procedures for clinical faculty were presented to the ABA in April

2009, and found to be in compliance with Standard

405(c).

ABA Site Visit Report, ABA Site Visit Findings of

Fact; Clinical Faculty Appointments Policy, Ex. K

9. The provision of the SUNY Trustees Policies that determines the legality of presumptively renewable

term contracts states as follows (emphasis added):

Renewal of term. Except as provided in this Article, term appointments may be renewed by the

chief administrative officer of the college for

successive periods of not more than three years each;

such renewals shall be reported to the Chancellor.

No term appointment, of itself, shall be deemed to

create any manner of legal right, interest or

expectancy in any other appointment or renewal.

SUNY Trustees Policies, Art. XI, Title D, 4, Ex.

K.

10. The Law School Faculty By-Laws provide the

following forum for due process related to clinical

faculty appointments (emphasis added).

4. Committee on Clinical Promotion and Renewal

[CCPR].

a. This Committee shall be composed of the Dean,

who shall be Chair, and all Faculty Members who

are tenured or on an indefinitely renewable long-

term contract.

b. This Committee shall have jurisdiction over and

the power to make recommendations with respect to

promotion, including the granting of an indefinitely

renewable long-term contract, renewal, dismissal, or

termination of the appointment of a Faculty Member

who is on an indefinitely renewable long-term

contract or on track for an indefinitely renewable

long-term contract. All determinations of these

matters shall be made as follows.

(4) Renewal, dismissal, or termination of the

appointment of a Faculty Member who is on an

indefinitely renewable long-term contract or on

track for an indefinitely renewable long-term

contract shall be recommended by a majority of the


4

Committee voting in person at a meeting.

11. The administrative officer at SUNY Buffalo

who is responsible for monitoring the consistency

of the Faculty Bylaws in the Law School with the

SUNY Trustees Policies is the former-Provost/now President Satish K. Tripathi.

SUNY Trustees Policies, Art. X, 5 (a) and (b), Ex. K.

12. The Law School Clinical Appointments Policy,

adopted in March 20, 2009, provides the following

procedure for renewals of 405(c)-protected Clinical

Professors (emphasis added).

Subsequent Reappointments of Clinical

Professors: It is expected that, absent unusual

circumstances, the three-year contracts for Clinical

Professors will be renewed.

CCPR: The CCPR, based on the recommendation

of the Clinical Director(s), shall vote on a

recommendation for reappointment of the Clinical

Professor. If the Clinic Director is up for renewal, no

additional recommendation will be provided.

Dean: The Dean shall consider the

recommendation of the CCPR and the materials on

which it was based and shall set forth in writing the

reasons s/he agrees or disagrees with the CCPRs recommendation regarding reappointment of the

Clinical Professor. In cases where the issue is the

performance of the Clinical Professor, the Dean

shall base a decision not to renew on clear evidence

of a failure to maintain the demonstrated ability

established in the prior reviews and

recommendations in the promotion and renewal

process.

Currently, SUNY policy limits term contracts to a

maximum of three years. If university policy allows

for longer-term contract periods, the faculty will

consider extending these long-term contracts to at

least 5-year contracts.

Appeal: If a negative recommendation or vote

occurs in the process described in I (c), (d) or (e), the

candidate may appoint an advocate. If the Dean

expects to make a final negative recommendation,

the Dean shall inform the candidate of that

possibility and the candidate shall have the

opportunity to be represented by an advocate in a

Clinical Faculty Appointments Policy, Ex. K.

5

meeting with the Dean before the Dean makes a

final recommendation.

Notice: In the event a term appointment is not to be

renewed upon expiration, the Dean shall notify the

appointee in writing as provided by the Policies of

the SUNY Board of Trustees, 8 N.Y.C.R.R.

335.14.

II. Professor Malkans initial appointment, promotion and reappointment, and Contract

13. The Law School engaged in a nationwide

search for a director of its LRW program.

Professor Malkan was interviewed on campus on

June 28-29, 2000. The faculty voted on July 10 to

make him an offer, which was conveyed by letter

on July 25, 2000, and he accepted.

Mutua Disclosures, Ex. B; Avery Disclosures, Ex.

F; Olsen Dep., Ex. G; Malkan Dep., Ex. B.

14. The position was originally approved and

posted at the title/rank of Clinical Assistant

Professor; when Professor Malkan was selected,

the offer was made to him at the title/rank of

Clinical Associate Professor.

Mutua Disclosures, Ex. B; Avery Disclosures, Ex.

F; Olsen Dep., Ex. G.

15. Professor Malkans first three-year term contract was renewed by then-Dean R. Nils Olsen,

Jr. at the end of the spring 2003 semester.

Malkan Dep., Ex. B; Olsen Dep. Ex. G., PERB

ALJ decision, Ex. K.

16. In the sixth year of his appointment, Professor

Malkan applied for promotion to full Clinical

Professor and a meeting of the P&T Committee

was convened on April 28, 2006, to review his

dossier and vote on a recommendation.

Vice Provost Lucinda M. Finley, former LRW

director (1993-1996) distributed a memorandum,

dated April 5, 2006, opposing Professor Malkans reappointment. Her memorandum was not

included in Professor Malkans dossier, but she requested that it be distributed directly through

faculty mail, which it was.

At his deposition on Dec. 19, Dean Mutua failed

to produce the dossier, which had been requested

through a federal subpoena, and testified that he did

not know where it was because it had disappeared into thin air.

Mutua Dep., Ex. B; Mutua Disclosures, Ex. B;

Mangold Dep., Ex. C; Mangold Disclosures, Ex. C.

Mutua Disclosures, Ex. B.

Mangold Disclosures, Ex. C.

Mutua Dep., Ex. B.

17. The sworn testimony of Professor Malkan, Malkan Dep., Ex B; Mangold Dep., Ex. C; Avery

6

former-Dean Olsen, and four of the tenured faculty

members who were present at the meeting (Dianne

Avery, Rebecca French, Susan V. Mangold, and

Robert Steinfeld), was that the vote to approve

Professor Malkans promotion and reappointment was nine to seven with three abstentions. Professor

Malkan produced an e-mail former Professor

Markus Dubber, who, on personal knowledge,

confirmed the same fact.

Vice-Dean Ewing, in his motion for a separate trial,

produced additional sworn declarations from

Professors Isabel Marcus, Shubha Ghosh, Lynn

Mather, and Alfred Konefsky, all of whom gave

evidence confirming that Dean Mutuas testimony about Professor Malkans promotion and reappointment was false.

Dep.; Ex. F, Olsen Dep., Ex. G; French Dep., Ex.

H; Steinfeld Dep., Ex. I.

Malkan Disclosures, Ex. B.

Ewing, Motion for Separate Trials, August 13,

2014.

18. Sue Mangold, who presided over the meeting,

and Dianne Avery, both former Vice-Deans,

supplemented their deposition testimony on Nov. 8,

2013 with their contemporaneous handwritten

notes and tally sheets of the vote count. Vice-Dean Mangold also testified that, after the meeting

adjourned, Professor James A. Gardner challenged

her count of the votes on the ground that Malkan

had only received a plurality of those present and

voting. Dean Olsen told Professor Gardner, upon

his return, that the vote was final when the meeting

adjourned and also that the Faculty Bylaws state

that, as long as a quorum is present, all faculty

business is decided by a simple majority of those

present and voting.

Mangold Disclosures, Ex. C; Avery Disclosures,

Ex. F.

Mangold Dep., Ex. C; Malkan Dep., Ex. B.

Malkan Dep., Ex. B; Faculty Bylaws, Ex. K.

19. Dean Mutua, who was present at the meeting,

testified at his deposition that the faculty did not

consider recommending Professor Malkans reappointment, but instead passed a resolution

recommending that he be terminated on one-years notice with an administrative rather than a faculty

appointment for the terminal year. He stated that

the vote count was six to five with two abstentions,

although this number of votes would not have made

up a quorum of the tenured faculty. This was

essentially the same testimony he had given on

March 31 and April 1, 2010 at the hearing of the

Public Employment Relations Board (PERB) in

Albany. He asserted, based on this fact, that Dean

Olsens reappointment of Professor Malkan was

Mutua Dep., Ex A.

Mutua PERB testimony (direct and cross), Ex. A.

7

unlawful and ultra vires.

20. Dean Mutua also stated that many faculty

members, including himself, wanted Professor

Malkan immediately removed from the building at

the end of the spring 2006 semester, and that the

vote count approving a one-year terminal contract

was determined to be sufficient by late-Professor

(and retired University President) William Greiner.

President Greiner passed away five years ago, in

2009.

Mutua Dep., Ex. A.

UB Law Forum, spring 2010, at 4-10, at

http://www.law.buffalo.edu/content/dam/law/restri

cted-assets/pdf/Forum/spr10.pdf

21. The Contract signed by Dean Olsen on Oct. 16,

2006, and countersigned by Professor Malkan on

Nov. 19, 2006 was intended by all parties to

comply with ABA Standard 405(c) and to provide

job security reasonably similar to tenure.

Contract, Malkan Disclosures, Ex. B; Mangold

Dep. Ex. C; Olsen Dep. Ex. G.

22. The Contract expressly separated Professor

Malkans faculty appointment from his administrative appointment and provided separate

signature lines for both. It also provided that

Professor Malkans teaching assignments would include both LRW and doctrinal courses and that

his faculty appointment was independent of his role

as Director of LRW as well as of the staffing and

structure of the LRW program.

Finally, it provided that its term was three-years

with a two-year mandatory extension for a total of

five-years. This 3+2 model was intended by Dean Olsen to harmonize the standard SUNY

contract term with the mandate of Standard 405(c).

Contract, Malkan Disclosures, Ex. B.

Contract, Malkan Disclosures, Ex. B; Mangold

Dep., Ex. C; Olsen Dep., Ex. G.

23. The Provosts Office, upon receipt of the Contract from the Law School in fall 2006, did not

reject the Contract or make any objection to any of

its terms and conditions. The Provost and the Dean

reported to the ABA in April 2009 that the

University had not in recent memory rejected any promotion or tenure recommendations from the

Law School.

Undisputed.

ABA Self-Study Report, at 49; Ex. K.

III. Makau W. Mutua is appointed Interim Dean by then-Provost Tripathi

24. Dean Olsen resigned his deanship effective

December 31, 2007.

Undisputed

8

25. Provost (now-President Tripathi) appointed

Professor Makau W. Mutua as Interim Dean for the

spring 2008 semester.

Undisputed

26. The dean search consultant and the faculty

identified three finalists for the position of

permanent dean, but Provost Tripathi failed to

come to terms with, or rejected all three.

ABA Self Study Report, at 88-89; Ex. K.

27. Provost Tripathi informed the faculty that the

consultant would not recommend a renewed dean

search immediately after a failed dean search and

so Professor Mutua would remain in the Deans Office for a fixed three-year term with the prefix

interim renewed. The faculty, which had not been consulted, in violation of ABA Standard 206,

objected to this arbitrary method of installing a

dean, but no faculty members, including then-

Professor Ewing and Professor Avery, were willing

to stand as deanship candidates in opposition to

Provost Tripathis clearly stated preference for Makau Mutua.

ABA Self Study Report, at 88-89; Ex. K.

Malkan Dep., Ex. B; Avery Dep., Ex. F; French

Dep., Ex. H.

IV. Dean Mutuas dismissal of Professor Malkan as Director of LRW

28. On February 20, 2008, Interim Dean Mutua

ordered all of the LRW instructors to compose

critiques of Professor Malkans job performance that would be due on February 29. They received a

letter telling them that these critiques would be held

in strict confidence unless they gave express

written permission for Professor Malkan to see

them.

Mutua Dep., Ex. A; Malkan Dep., Ex. A.; Mutua

Disclosures, Ex. A.

29. Vice-Provost Finley submitted a revised

version of the same memorandum she had written

on April 5, 2006, in her attempt to block Professor

Malkans contract renewal.

Professor Malkan, in the same time-frame was

ordered to write a self-assessment of his job performance.

Mutua Disclosures, Ex. A.


30. Professor Malkan, during his term of

employment, was never allowed to see these

critiques, even those from instructors who had

granted permission for him to read them.

Mutua Dep., Ex. A.

9

31. On March 12, 2008, Dean Mutua sent Professor

Malkan an e-mail demanding his resignation as

Director of LRW. This was in the middle of spring

break. Professor Malkan declined and requested a

meeting the following week. Dean Mutua sent out

a message to the entire faculty on March 13

announcing that he had removed Professor Malkan.

Dean Mutua testified that the request for a

resignation was merely pro forma and that the request was really a polite way of telling him that I have fired him.

Mutua Dep., Ex. A.


Mutua Dep., Ex. A.

32. The Law Schools curriculum committee (known by the acronym of APPC) met on March

25, 2008. Professor Mangold requested that the

LRW program be placed on the meetings agenda. Dean Mutua refused to do so. At the meeting,

Professor Malkan attempted to make a motion to

place the LRW program on the agenda, but Dean

Mutua did not allow him to speak.

Professor Malkan, later in the week, on March 28,

wrote an e-mail to Dean Mutua stating that he did

not seem to have any further role to play in the

deliberations of the APPC and offered to resign, for

which Dean Mutua thanked him and accepted.

Mutua Dep., Ex. A; Malkan Dep., Ex. B; Malkan

Disclosures, Ex. B.


33. One year later, April 22, 2009, the APPC

presented the faculty with a recommendation for

initiating a Skills program. The recommendation proposed that the R&W program be put under the direction of a new Vice-Dean for Legal Skills in lieu of a Director of LRW. The proposal expressly

stated that it would reorganize the Law Schools existing efforts in skills instruction, but did not

mandate the creation of any new academic

programs.

Malkan PERB testimony, Ex. B; Malkan

Disclosures, Ex. B.


V. Dean Mutuas termination of Professor Malkans faculty appointment

34. Four months later, on August 28, 2008, Dean

Mutua sent a letter by certified mail to Professor

Malkan informing him that his contract (the

Contract) would not be renewed when it ended on

August 31, 2009.

Non-Renewal Notice, Mutua Disclosures, Ex. A.

35. He stated that the reason for termination was

that the Law School had terminated the entire


10

Research & Writing program and replaced it with a new Skills program. This, he stated, was good cause for dismissing Professor Malkan under ABA

Standard 405(c), Interpretation 405(6). There is no

dispute that the Law School is required to provide a

first-year legal writing program pursuant to ABA

Standard 302(a) and that it has been in compliance

at all relevant times.

Undisputed.

36. Dean Mutua in the non-renewal notice

informed Professor Malkan that he was invited to

apply for one of the new instructor positions that

would be created to staff the new program and that

he would be considered on the same basis as the

other members of the R&W staff.


37. Finally, he stated that the 3+2 term of the Contract as provided by Dean Olsen was not valid

under the SUNY Trustees Policies. He later testified that the entire Contract was null and void for this reason and that Professor Malkan did not have a Contract with SUNY Buffalo.


Mutua Dep., Ex. A.

38. Dean Mutua in the non-renewal notice made no

mention of the requirement under the Faculty

Bylaws that the CCPR make a recommendation to

the Dean regarding non-renewals of Clinical

Professors prior to a final decision. Neither did he

mention any University appeals procedures to

which Professor Malkan might be entitled.


39. On April 22, 2009, Dean Mutua convened the

CCPR for its only meeting of the year to vote on

the contract renewals of the other two clinical

professors whose contracts expired on the same day

as Professor Malkans (August 31, 2009). They were both approved for renewal. Dean Mutua did

not put Professor Malkans non-renewal on the CCPR agenda and it was not considered at that

meeting or any other before the end of the

academic year.


Malkan PERB testimony (direct), Nov. 17, 2009,

see Ex. B.

Undisputed.

40. Professor Malkan did not file a grievance under

the Collective Bargaining Agreement (CBA), either

pre- or post-deprivation. His decision was based

on the UUPs advice that neither a breach of contract claim nor a due process claim could be

eligible subjects for a CBA grievance because his

non-renewal did not violate any CBA provision.

Undisputed.

Singer-Blumberg Aff., Court of Claims; see


11

41. The Clinical Faculty Appointments Policy,

which was revised on March 20, 2009 for the ABA

reaccreditation review, expressly provides that the

contracts of clinical professors are presumptively

renewable and that clinical professors are entitled

to due process before their employment may be

terminated. (See Undisputed Fact # 12, supra.)

Clinical Faculty Appointments Policy, Ex. K.

42. Dean Mutua claims in this litigation that,

despite his Letter of Appointment to the state rank

and academic title of Clinical Professor, Professor

Malkan was not a Clinical Professor, and not

entitled to the due process protections granted in

his Contract, based on the undisputed fact that his

principal (but not sole) assignment in the Law

School was to direct the LRW program rather than

to teach in a Law School clinic.

Mutua Dep., Ex. A.

43. Dean Mutua also testified, corroborated by

James L. Jarvis, Esq., SUNY Buffalo associate

employment counsel, that no clinical professor,

regardless of whether he or she teaches in a Law

School clinic, is entitled to a presumptively

renewable contract because such contracts would

violate the SUNY Trustees Policies that unconditionally ban any expectation of renewal

terms for term contract appointees.

Mutua Dep., Ex. A.

Jarvis Dep., Ex. E.

44. Professor Malkan applied for one of the

instructor positions in the new LRW program. He stated that his intention was to mitigate

damages and did not concede that the LRW

program had been terminated. On March 30, 2009,

he received a rejection letter from Vice-Dean

James A. Gardner.

Malkan PERB testimony, Ex. B.


45. Dean Mutua testified at PERB that he had no

knowledge at the time of Professor Malkans rejection because he had drawn a complete veil between himself and the Committee that was doing

the hiring. He did not explain why he did not need

or want to have input into these decisions.

Mutua PERB testimony, Ex. A.

Undisputed.

VI. The ABA Site Visit and Reaccreditation

46. On April 8-11, 2009, the ABA Site Visit Team

visited the SUNY campus for the sabbatical

Undisputed.

12

reaccreditation of the Law School.

47. In preparation for this Site Visit, the Law

School prepared a Self-Study report, dated March 2, 2009. An initial response, dated Feb. 9,

2010, requested further information about the status

of the Law Librarian. On October 17, 2011, the

Consultant on Legal Education informed then-

President Simpson and Dean Mutua that the ABA

had approved the Law Schools reaccreditation.

ABA Self-Study Report, Ex. K.

ABA Decision of Accreditation Committee

(January 2010, conveyed on Feb. 9, 2010), Site

Visit Findings of Fact, Ex. K.

Letter of Hulett H. Askew, ABA Consultant on

Legal Education, Oct. 17, 2011, Ex. K.

48. In the Self-Study, the Dean and Provost

certified to the ABA that the Law School was in

full compliance with Standard 405(c), the clinical

faculty standard that requires security of

employment reasonably similar to tenure. They also certified that the Law School had never denied

contract renewal to a clinical professor, despite the

fact that Dean Mutua had non-renewed Professor

Malkan at the beginning of that year. This false

statement covered both the prior (1995) Clinical

Faculty Appointments Policy and the newly

adopted (2009) one. The Site Visit team accepted

this certification as true and adopted these

statements in its Findings of Fact.

ABA Decision of Accreditation Committee

(January 2010, conveyed on Feb. 9, 2010) at 10;

Site Visit Findings of Fact, 48-51; Ex. K.

Id.

49. The Site Visit Team gave the following

warning regarding Vice-Provost Lucinda M.

Finleys participation in personnel decisions:

One matter of concern that did arise in discussions with a number of faculty members

related to the rather unusual situation of a law

faculty member having the position of Vice-Provost

for Faculty Affairs with responsibilities that

included passing on various academic appointment

matters. At the same time, the individual also

attends and plays an active role at law faculty

meetings and governance. This matter was

discussed with both the Provost and the Dean and

they indicated that they would address the

situation.

ABA Report on University at Buffalo (conveyed on

Oct. 28, 2009), at 23; Ex. K.

VII. Professor Malkans petition to the Grievance Committee

50. On January 7, 2009, Professor Malkan filed a

grievance petition, and on January 27, 2009 filed a

revised grievance. It was addressed to then-

Ewing Disclosures, Ex D.

13

Professor Ewing, who was the Chair of the

Committee and had been Chair of the Committee

since long before Professor Malkan was hired.

On the same exact day, January 27, 2009, Vice-

Provost Finley sent yet another copy of her April 5,

2006 critique of Professor Malkan to Interim Dean Mutua via his assistant, James R. Newton.

Ewing Dep., Ex, D.


51. The Grievance Committee is charged with

investigating and reporting grievances by any Faculty Member who feels aggrieved by any matter

relating to his rights and privileges as a Faculty

Member, including but not limited to, terms and

conditions of his or her employment.


52. The Grievance Committee is mandated by the

Faculty-Staff Handbook which states that informal

dispute resolution is preferred, but that each

department must also be prepared to provide formal

proceedings where warranted.

Faculty-Staff Handbook, Ex. K.

53. Professor Ewing approached Dean Mutua in an

attempt to adjust (i.e., mediate) the grievance, but Dean Mutua refused even to speak to him, claiming

that his refusal to cooperate was based on advice of counsel. He told Professor Ewing that Professor Malkan was threatening or had

commenced litigation.

Ewing Dep., Ex, D.

Improper Practice Charge, Ex J., Notices of Claim, Jan. 28 and Nov. 13, 2009, Ex. J.

54. Professor Ewing consulted the other two

members of the Committee, who accepted his

assessment of the situation. He then responded to

Professor Malkan by e-mail, stating that the

grievance would have to be held in abeyance until

Professor Malkan resolved any legal claims against

the University, at which time he would be welcome

to return to the Committee and reinitiate his

grievance.

Ewing Disclosures, Ex D; Ewing Dep., Ex, D.

55. Professor Malkan objected that he needed the

Grievance Committees assistance now; that the grievance only pertained to his right as a Faculty

Member to be heard by the CCPR; that his

grievance did not raise any substantive legal issues

regarding his Contract or faculty appointment; and

that the grievance would be moot if not heard in a

timely manner.

Malkan Disclosures, Ex B.

14

VIII. Satish K. Tripathi is appointed President of SUNY Buffalo

56. In August 2010, President John B. Simpson

announced his retirement which took effect at the

end of the spring 2011 semester.

Undisputed.

57. At the end of the spring 2011 semester, Satish

K. Tripathi was installed in the Office of President.

UB Ignores Search Guidelines, UB Spectrum,

March 10, 2011, at

http://www.ubspectrum.com/news/view.php/26991

5/Sources-UB-Ignores-SUNY-Guidelines

Chancellor Zimpher endorses Tripathis Candidacy, UB Spectrum, March 23, 2011, at


7/SUNY-Chancellor-Endorses-Tripathis-Candi

Presidential Search Guidelines (Sept. 23, 1997), at

https://www.suny.edu/sunypp/documents.cfm?doc_

id=573

XI. Professor Malkan receives advice and assistance from NYSUT/UUP

58. In April 2008, because he was concerned that

Dean Mutuas hostility and disrespect was making it difficult for him to function in his job, Professor

Malkan met with Tara-Singer Blumberg, the on-

campus UUP representative. She advised him that

she would try to arrange a meeting with Dean

Mutua so they could discuss the LRW program in a

polite and collegial manner and that she would also

try to have Dean Mutua send a name-clearing

message to the faculty to clear up any rumors about

why Professor Malkan had been so abruptly

removed.

Singer-Blumberg PERB testimony, Malkan

Disclosures, Ex B; Malkan PERB testimony, Ex. B,

PERB ALJ Decision, Ex. J.

59. Ms. Singer-Blumberg proceeded at first through

the Director of Employee Relations, Jeff Reed, and

then went over his head to the Vice-President for

Human Resources, Scott J. Nostaja. She had no

success.

Singer-Blumberg PERB testimony (direct), Ex. B.

60. Ms. Singer-Blumberg was first told by Mr.

Reed that she should stop pushing because if Dean

Mutua was pushed any further, he would send out the truth and that the message would be detrimental to Professor Malkans reputation.

Singer-Blumberg PERB testimony (direct), Malkan

Disclosures, Ex B; Malkan PERB testimony

(direct) , Ex. B, PERB ALJ Decision, Ex. J.

61. Ms. Singer-Blumberg was then told by Vice-

President Nostaja that he had spoken directly to

Singer-Blumberg PERB testimony, Malkan

15

Dean Mutua and that Dean Mutua was aware of the

UUPs advocacy. Dean Mutua later denied that he knew the UUP was involved and further denied that

he had ever spoken at all to Vice-President Nostaja

about the matter.

Disclosures, Ex B;


X. Professor Malkans unsuccessful attempts to receive a fair hearing on the merits

62. On November 19, 2008, the UUP/NYSUT filed

an improper practice (IP) charge with the Public

Employment Relations Board in Albany alleging

that Professor Malkans termination was motivated by anti-union animus, that is, in retaliation for the

UUPs attempt on Professor Malkans behalf (a) to obtain a name-clearing message for Professor

Malkan after Dean Mutua had fired him as Director

of LRW and (b) to obtain a meeting with Dean

Mutua to discuss the LRW program. The statute of

limitations for an IP charge is four months.

Improper Practice Charge, Ex J.

Public Employees Fair Employment Act (Taylor Law) (codified at N.Y. Civ. Serv. Law 209(a)).

63. On January 28, 2009, Professor Malkan,

represented by UUP/NYSUT counsel, filed a

Notice of Claim for breach of contract in the NYS

Court of Claims. His attorneys filed a second

Notice of Claim for breach of contract after the

Contract terminated on November 13, 2009. The

statute of limitations for a breach of contract claim

is six months.

Notices of Claim, Jan. 28 and Nov. 13, 2009,

Ex. J.

See N.Y. Court of Claims Act, Art. II, 4.

64. On March 21, 2009, Tara Singer-Blumberg, the

UUP labor relations specialist on-campus, informed

Professor Malkan that an attempt to mediate a

settlement sponsored by PERB had failed because

the University declined to make any offer.


65. The PERB hearing was held on November 17,

2009, and continued on March 31-April 1, 2009.

On the latter two days, Dean Mutua, on both direct

and cross examinations, testified that Professor

Malkans appointment was ultra vires because the P&T Committee, on April 28, 2006, never took

a vote on whether Professor Malkan should be

promoted, but only voted on a resolution to

terminate him on one-years notice, which was approved.


Mutua PERB testimony (direct and cross), Ex. A.

66. Vice-President Nostaja, without explanation or PERB transcript, April 1, 2010, on-record colloquy

16

excuse, did not appear at the hearing on April 1,

2010 to corroborate Dean Mutuas testimony even though the ALJ offered SUNY the opportunity to

extend the hearing for an additional day to

accommodate what he ruled would be a SUNY

rebuttal witness. SUNY declined the ALJs offer. The ALJ in his decision accepted Dean Mutuas version of all facts in the case as credible and true.

with ALJ, at 376-378.


67. Vice-President for Human Resources Scott J.

Nostaja resigned from the SUNY Buffalo

administration within the first month after Provost

Tripathi was appointed as President.

Nostaja Resigns, Reasons Unknown, UB Spectrum,

March 28, 2011, at


0/Nostaja-Resigns-Reasons-Unknown

68. PERB did not issue its ruling until November 8,

2012, which was two years and one week to the

day after the trial briefs were submitted. The ALJ

dismissed the charge with two holdings: (1) Dean

Mutua never knew about the UUPs involvement in the matter and therefore could not have been

motivated by anti-union animus, and (2) Dean

Mutua had legitimate business reasons for

terminating Professor Malkans employment. The ALJs decision was affirmed in its entirety by the PERB Board on August 23, 2013.


PERB Board Decision, Ex. J.

69. The Court of Claims dismissed Professor

Malkans claim on September 6, 2013, on the procedural basis that the January 28, 2009 Notice

of Claim failed to state a specific dollar amount and

should have been captioned Notice of Intent to File

a Claim in order to satisfy the Court of Claims Act.

It further ruled that the November 6, 2009 claim

missed the six-month statute of limitations for

breach of contract, even though the Contract did

not expire until September 1, 2009.

Court of Claims Decision, Ex. J.

Undisputed.

70. To this point, except for the depositions in this

case, no testimony has been taken in any court

regarding Professor Malkans allegations that Dean Mutua committed perjury by lying about the vote

of the P&T Committee on his promotion and

reappointment.

Undisputed.

71. Professor Malkans attempts to find employment in legal education, both prior to

September 1, 2009 (the day he left the employ of

SUNY Buffalo), and afterwards have been

unsuccessful. He has been left without any

Malkan Dep., Malkan Disclosures; Ex. B.

17

explanation of why he left his 405(c)-protected

position, except Dean Mutuas statement in the non-renewal letter that the Law School had

replaced the LRW (or R&W) program with the

LAWR (or Skills) program. Professor Malkan does

not have a reference letter or any type of

verification that he was an employee in good

standing when SUNY Buffalo terminated his

employment.

Undisputed.

XI. Professor Malkan alleges that Dean Mutua committed perjury

72. On March 31, 2010, Dean Mutua, on direct

examination, testified under oath that the faculty

never voted on recommending Professor Malkans reappointment. The next day Ms. Singer-Blumberg

asked Dean Mutua the same question and Dean

Mutua repeated the same answer.

Mutua PERB testimony (direct and cross); Ex. B;

73. On December 19, 2013, Dean Mutua confirmed

the same statement about the April 28, 2006 P&T

Committee meeting, under oath, in even more

detail, adding a specific vote count.

Mutua Dep.; Ex. B.

74. After the PERB transcripts were supplied,

Professor Malkan sent them to professors he knew

had been at the meeting and received e-mail replies

from Professor Markus Dubber (now at Univ. of

Toronto), Professor Shubha Ghosh (now at Univ.

of Wisconsin) and former-Dean Nils Olsen. All

confirmed in writing that what he had been told

after the P&T Committee meeting was true that his reappointment had been approved.

Malkan Disclosures; Ex. B.

75. Professor Malkan requested that the UUP ask

the ALJ to reopen the record in order to take further

testimony on this issue, but the UUP declined,

pointing out that Professor Malkan at the time had

agreed that the case could be adjourned because a

winning case had been presented.

Malkan Disclosures; Ex. B.

76. The Court of Claims case stalled at the

discovery stage and, on November 1, 2011, no

depositions had yet been taken of any of the

professors who could provide sworn evidence that

Dean Mutuas testimony at PERB was false.

Undisputed.

18

77. After Professor Malkan learned, on that date,

that the ALJ was not going to decide the case for

possibly another year, he contacted the GOERS

attorney, Lynn Vance, Esq., to give her evidence

that she had put on perjured testimony. He copied

President Satish K. Tripathi and others on the letter.

Malkan Declaration and Exhibits.

78. The depositions in this case provided sworn

testimony that supported Professor Malkans allegation that Dean Mutua had committed perjury,

and has been supplement with sworn affidavits

obtained by Vice-Dean Ewing.

Mangold Dep., Ex. C; Avery Dep., Ex. F; French

Dep., Ex. G; Olsen Dep. Ex. H; Steinfeld Dep., Ex.

I.

Ewing, Motion for Separate Trials, Aug. 13, 2014.

79. Professor Malkan subsequently undertook

many efforts to get the University and its legal

counsel to at least investigate his allegations, but

the University, including President Tripathi, has

refused to acknowledge Professor Malkans allegations or to investigate them.

Malkan Declaration and Exhibits.

80. Dean Mutua failed to appear, without excuse or

prior notice, for the mandatory ADR held at the

offices of Hugh M. Russ, Esq. on March 1, 2013.

President Tripathi refused to sit for a deposition in

this case and instead submitted a sworn declaration,

dated December 5, 2013, stating that he knew

nothing about Professor Malkans allegations against Dean Mutua.

Undisputed.

Tripathi Dec., Ex. J.

81. Before he signed the sworn declaration,

President Tripathi was given documentary evidence

that Professor Malkan had contacted his Office

several times, both directly and through UB

Counsel, about the allegations. He was also shown

the UB Spectrum article that had publicly reported

the allegations. President Tripathi swore that he

did not recognize these documents and that nothing

about Professor Malkans appointment or termination had ever before come to his attention.

Malkan Dec. and Exhibits.

See UB Spectrum, April 29, 2013, at 4-5, http://www.ubspectrum.com/news/view.php/27909

5/Former-UB-law-professor-proceeds-with-fe

19

TABLE OF SOURCES TO STATEMENT OF UNDISPUTED FACTS

References to the undisputed facts and to possibly disputed facts stated in the Plaintiffs Memorandum of Law are cited to the following Sources. In the Memorandum, publicly

accessible documents are also provided with an Internet link to the documents origin on a State or institutional website. The Sources are consolidated in the Appendix to this Statement.

Exhibit A: Disclosures of Dean Makau W. Mutua and deposition testimony, December 19,

2013, (including PERB testimony, March 31-April 1, 2010).

Exhibit B: Disclosures of Professor Jeffrey Malkan, and deposition testimony, December 18,

2013 (including PERB testimony, November 18, 2009).

Exhibit C: Disclosures of Professor Susan Mangold, and deposition testimony, Nov. 20, 2013.

Exhibit D: Disclosures of Vice-Dean Charles P. Ewing, and deposition testimony Dec. 20, 2013.

Exhibit E: Disclosures of James L. Jarvis, Esq., and Deposition testimony, December 20, 2013.

Exhibit F: Disclosures of Professor Dianne Avery, and Deposition testimony, Nov. 18, 2013.

Exhibit G: Deposition testimony of former-Dean R. Nils Olsen, Jr., December 19, 2013.

Exhibit H: Deposition testimony of Professor Rebecca French, November 20, 2013.

Exhibit I: Deposition testimony of Professor Robert Steinfeld, November 20, 2013.

Exhibit J: Court documents related to this litigation.

Exhibit K: SUNY documents related to this litigation.

Declaration of Jeffrey Malkan, with Exhibits.

Dated: August _, 2014

Carle Place, New York

By: ____________________________________

LEEDS BROWN LAW, P.C.

Attorneys for Plaintiff

One Old Country Road, Suite 347

Carle Place, New York 11514

(516) 873-9550

malkan rule 56.1 statement (august-24-2014)

Documents

faculty bylaws

tenured faculty

faculty governance

entire faculty

clinical promotion

professor malkans petition

appointments committee

permanent voting faculty