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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
Faculty Bylaws, Ex. K.
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.
Malkan Disclosures, Ex. B.
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 Disclosures, 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.
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.
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
Non-Renewal Notice, Mutua Disclosures, Ex. A.
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.
Non-Renewal Notice, Mutua Disclosures, Ex. A.
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.
Non-Renewal Notice, Mutua Disclosures, Ex. A.
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.
Non-Renewal Notice, Mutua Disclosures, Ex. A.
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.
Mutua Disclosures, Ex. A.
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
Malkan Disclosures, Ex. B.
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.
Malkan Disclosures, 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.
Mutua Disclosures, Ex. A.
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.
Faculty Bylaws, Ex. K.
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
http://www.ubspectrum.com/news/view.php/26947
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;
PERB ALJ Decision, Ex. J.
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.
Malkan Disclosures, Ex. B.
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.
Malkan Disclosures, Ex. B.
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.
PERB ALJ Decision, Ex. J.
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
http://www.ubspectrum.com/news/view.php/27599
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 ALJ Decision, Ex. J.
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
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