PERB Malkan Exceptions Brief 12-7-2012

7/30/2019 PERB Malkan Exceptions Brief 12-7-2012

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State of New York

Public Employment Relations Board

IN THE MATTER OF

UNITED UNIVERSITY PROFESSIONS,

NEW YORK STATE UNITED TEACHERS,

AFT, LOCAL 2190, AFL-CIO,

Charging Party,

-and-

STATE OF NEW YORK (State University PERB Case No. U-28826

of New York at Buffalo)

Respondent.__________________________________________________________________________

CHARGING PARTYS BRIEF

IN SUPPORT OF ITS EXCEPTIONS TO THE DECISION OF THE

ADMINISTRATIVE LAW JUDGE

United University Professions

Submitted By:

Tara Singer-Blumberg

Labor Relations Specialist

NYSUT Regional Office

270 Essjay Road

Williamsville, NY 14221

(716) 634-7132


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Preliminary Statement

This Memorandum of Law is submitted on behalf of the Charging Party, United

University Professions (UUP) in support of its exceptions to the Decision of the

Administrative Law Judge dated November 8, 2012, which dismissed the charges.

Factual Background

The claims in the instant matter concern certain actions taken by the Respondent

SUNY Buffalo in terminating Petitioner Jeffrey Malkans employment as a clinical

professor at the State University of New York at Buffalo Law School (UB).

Professor Malkan was offered a contract signed by Dean R. Nils Olsen, Jr. on July

25, 2000 (CP1). His academic appointment was as a clinical associate professor. He also

was offered an administrative position as Director of the Research and Writing (R&W or

LRW) program. Professor Malkan continued in this administrative position (CP 3, CP 4)

until he was summarily removed as Director by the Dean of the Law School, Makau W.

Mutua, during the schools spring break on March 13, 2008 (J 2, J 3).

The administrative position, unlike the faculty position, was a decanal

appointment and the new dean had the authority to select his own administrators.

Because of the undue haste with which Professor Malkan was removed and the

grandstanding that accompanied the announcement, however, Malkan felt that this ability

to function within the institution had been impaired and requested assistance from his

union representatives to advocate on his behalf to secure a name clearing announcement

to the faculty. Tara Singer-Blumberg (Singer-Blumberg), the UUPs labor relations

specialist, made numerous requests to various people in SUNY Buffalos top level

administration for this to occur (J 4, J 5, J 6). Dean Mutua refused to do so. On August

28, 2008, approximately two months after the UUP concluded it had hit a dead end with

the Dean, Professor Malkan received notification that his employment would be

terminated at the end of the coming academic year (J 7).

Although the facultys by-laws provided that the contract of a full clinical

professor could only be non-renewed after the Dean obtained a recommendation from the


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Committee on Clinical Promotions and Renewals (CCPR), the entire 2008-2009

academic year came and went and Dean Mutua steadfastly refused to do so. Professor

Malkans contract, accordingly, expired on August 31, 2009.

Professor Malkans contract in effect at the time of his non-renewal was a three-year appointment with a two-year automatic extension for the purpose of complying with

the ABAs requirement that clinical appointments run for five-year terms. (CP 3) It had

been signed by then-Dean Olsen on October 19, 2006. As a clinical professor, Malkan

was not eligible for university tenure. However, the American Bar Association (ABA)

accreditation guidelines, specifically Standard 405(c), confer tenure-like protection on

clinical faculty for the purpose of protecting their academic freedom, commonly known

as clinical tenure, including due process procedures and a good cause standard for

removal. Malkans contract was drafted to comply with Standard 405(c), which was

annexed to the document, and provided extensive detail on Malkans appointment

expectations, as well as on what specific grounds he could be non-renewed. (CP 3)

In the letter informing Malkan of his non-renewal, the specific reason provided by

the Dean was that the law school had terminated the R&W program (J 7). He also

informed Professor Malkan that he declined to comply with the provision in the contract

that required an automatic two-year extension. In fact, the R&W program was not

terminated. On June 19, 2008, Dean Mutua had appointed a professor to study the

feasibility of making changes to the program (CP 6). Any proposal would then be

presented to the full faculty for a vote. Almost one year later, on April 15, 2009, the

faculty was finally presented with a proposal, which did not materially change any aspect

of the R&W program (CP 7). The same number of instructors would be employed in the

2009-2010 academic year, using the same curriculum, schedule, and textbooks as in prior

years (CP 13, CP 14). The only change was that the R&W program was put under the

administrative umbrella of a skills program which now included second and thirdyear course offerings (CP 7).

On November 19, 2008, the UUP filed an Improper Practice charge alleging that

the State of New York (State) violated s. 209-a.1 (a) and (c) of the Public Employees Fair

Employment Act (Act) when it non-renewed Malkans appointment as clinical professor.


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The State filed an Answer denying any violation of the Act. A hearing was held on

November 17, 2009, March 31, 2010 and April 1, 2010. Both parties submitted post-

hearing briefs on November 1, 2010. By Decision dated November 8, 2012, the ALJ

dismissed the charge. (See ALJ Decision, p. 23)

UUP submits these Exceptions in support of its position that the ALJ erroneously

concluded that Malkans non-renewal was not motivated by anti-union animus.

UUPs Exceptions as well as its Brief in Support of its Exceptions are being

submitted within fifteen working days after receipt of the Decision of the Administrative

Law Judge in accordance with s. 213.2 of PERBs Rules of Procedure.

Legal Standard

It is well-settled PERB precedent that a Charging Party must prove three elements

by a preponderance of the evidence in order to establish aprima facie improper

motivation charge:

(1) the employee was actually engaged in protected activity; and

(2) the employer knew of the protected activity; and

(3) the employer took adverse action against the employee because of the

engagement in such protected activity.1

Proof of unlawful motivation in violation of 209-a.1 (a) and (c) of the Act can be

demonstrated through direct evidence or circumstantial evidence.2 The circumstantial

evidence presented to prove aprima faciecase must give rise to an inference that but

for the protected activity the employer would not have engaged in the adverse

employment action.

1See, e.g., Elwood Union Free School District, 43 PERB 3012 (2010); City of Salamanca, 18

PERB 3020 (1985); Town of Independence, 23 PERB 3020 (1990);Board of Education of the

City School District of New York(Grassel), 41 PERB 3024 (2008); United Federation of

Teachers, Local 2, AFT, AFL-CIO (Jenkins), 41 PERB 3007 (2008), confirmed sub nom.

Jenkins v. New York State Pub Empl Rel Bd41 PERB 7007 (Sup Ct New York County 2008)

affd, 67 AD3d 567, 42 PERB 7008 (1st Dept 2009).2Elwood Union Free School District, supra note 1; United Federation of Teachers, Local 2, AFT,

AFL-CIO (Jenkins) supra note1.


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This relatively low initial evidentiary threshold for establishing a

prima facie case in circumstantial evidence cases is necessitated by theprinciples underlying 209-a.1(a) and (c) of the Act along with the lack

of discovery and the pleading requirements under our Rules of Procedure

(Rules) [footnote omitted]. Although the timing and the context of events

alone in a circumstantial evidence case may not be sufficient to meet acharging party's ultimate burden of proof, the timing and context of an

employer's conduct may be sufficient to establish an inference of improper

motivation, thereby shifting the burden of persuasion to the respondent tocome forward with evidence demonstrating a non-discriminatory basis for

the alleged conduct [footnote omitted].3

If sufficient circumstantial evidence is introduced to establish such an inference,

the burden of persuasion shifts to the Respondent to rebut the inference by presenting

evidence demonstrating that its conduct was motivated by a legitimate non-

discriminatory business reason.4

Factors to examine in determining whether an

employer's stated business reasons for an action are really pretextual would include the

timing of the action, the consistency or inconsistency of the action taken compared to the

customary practices of the employer and direct evidence that proves the stated purpose

for acting is false.5

If the Respondent presents evidence of a legitimate non-

discriminatory reason, then the burden shifts back to the Charging Party to establish that

the articulated non-discriminatory reason is pretextual.6

A violation will be found where the Charging Party has proven, by preponderanceof the evidence, that the Respondent would not have taken the action but for the protected

activity. Applying this standard to the instant case, there is no dispute, and the ALJ ruled

accordingly (ALJ Decision p.20) that Malkan was engaged in protected activity. He

sought assistance from his Union, to advocate on his behalf, to the administration

(Transcript pp. 98-102). In addition, the Union, through its representatives, openly and

repeatedly did so.

3United Fedn of Teachers, Local 2, AFT, AFL-CIO (Jenkins), 41 PERB 3007 (2008),

confirmed sub nom.Jenkins v New York State Pub Empl Rel Bd, 41 PERB 7007.4Elwood Union Free School District, supra note 1; United Federation of Teachers, Local 2, AFT,

AFL-CIO (Jenkins) supra note 1.5Matter of Albany Public School Teachers Assn, 42 PERB 4528 (2009).

6Elwood Union Free School Districtsupra note 1.


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(ALJ Decision p. 20, emphasis added) This conclusion is of dubious merit for two

reasons. First, JimNewtons testimony should have been accorded little weight because

he is Dean Mutuas personal assistant (Chief of Staff) who serves at the Deans will

as the gatekeeper for his door, so to speak (Transcript pp. 374-375). Presumably, his

discretion and loyalty is a requirement of his job, which would be jeopardized if he

contradicted the Deans testimony.

Second, the uncontroverted testimony of everyone in contact with Dean Mutua

was that they were fully aware of the Unions involvement. Moreover, Dean Mutua was

fully aware that UB is a unionized employer.7

Despite his attempt to insulate himself

from liability by using intermediaries to deal with Employee Relations (ER), it is highly

unlikely that Dean Mutua thought that Professor Malkan was navigating his way through

the ER organization without professional support and did not realize that the Union was

the source of their concern.

B. Dean Mutua was also directly advised of the UUPs involvement through

Vice-President for Human Resources, Scott Nostaja.

ALJ Carlsons finding of fact is clearly erroneous for the even more fundamental

reason that it fails to report that on June 11, 2008, Tara Singer-Blumberg initiated

contact with Scott Nostaja, Vice-President for Human Resources and Presidents Chief of

Staff. (J6) Vice-President Nostaja did not have to go through Jim Newton to interact

with the Dean, but approached the Dean and other top administrators directly. Tara

Singer-Blumberg testified:

A. I sent Scott Nostaja an e-mail the following week

with some background and summary and that is in the record.

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It is undisputed that the Director of Employee Relations, Jeff Reed, was aware of theUnions involvement (Transcript pp. 348-358). It is also undisputed that Singer-

Blumbergs e-mail demanding that Mutua meet with Malkan was sent to both JimNewton and Marlene Cook, Vice-Dean for Management, who were expected to share it

with Mutua (Transcript pp. 121, 349). Jim Newton confirmed to Jeff Reed that he shared

everything in the e-mail (J 4) with Mutua (Transcript p. 350), and would have had a

copy of the email with him, when he discussed it at the meeting with Mutua (Transcriptp. 373). That e-mail is the Unions request on behalf of Malkan (J 4).


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Q. I'm showing you Joint Exhibit 6, and ask if that's

the e-mail you're referring to?

A Yes.

Q. After you sent that e-mail, Joint Exhibit 6, whatif any interactions took place between yourself and Scott

Nostaja?

A. I received a phone call from him within a week of

sending the e-mail. He had spoken with Jeff Reed to get the

background, as a follow up to the e-mail I sent him, beforehe called me and we talked about the situation in the law

school, the fact that I had been working with employee

relations for months now, and that they were unable to

accomplish anything that we asked for and that Jeff deserved

the things that we were looking for. UB is on a mission tobe a great place to work and we talked about the fact that a

great place to work would provide the minimum that we wererequesting, that Jeff should be given the information.

I remember specifically talking about whether the

information that the dean had garnered, with respect to

these alleged complaints of performance were confidential ornot and that he could disclose the details of the failure of

performance, if there was one, without disclosing the

specific identity of the people, and Scott agreed with meand said that he would speak with the dean and try and have

our requests granted..

Q. And following that conversation with ScottNostaja, did you have any further discussions with him about

the matter?

A. I did. I remember having two conversations with

him in his office. In one of them he somehow knew I was in

the building and came to find me and I stopped by and wetalked about a bunch of cases, Jeff Malkan being one of

them, and he told me that he had spoken with the dean and

that the dean was adamantly refusing to do anything we were

asking of him, that he was very resistant to Scott's push tothe union's request, but that Scott would speak with him

again to see whether we could get any of the things that we

were looking for.

MS. RASKIN-ORTIZ: Thank you.


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(Transcript pp. 129-131) Dean Mutua, in contrast, flatly denied everspeaking to Vice-

President Nostaja.

Q. Sir -- Dean, did you ever talk to Scott Nostaja

about Jeff Malkan's request for a meeting with you or for

you to send a name-clearing e-mail regarding his -- yourremoval of him as the director?

A. I have never had a conversation or an exchange ofany sort with Scott Nostaja about Jeff Malkan, never.

MS. VANCE: Thank you. I have no

further questions.

(Transcript p. 232). The record reflects that both parties discussed at length the

significance of this third communication between the UUP and the Dean via Vice-

President Nostaja. (Transcript pp. 232-238; 376-379)

On April 1, 2010 SUNY rested its case without calling Vice-President Nostaja,

who, Singer-Blumberg testified, had been pushing Dean Mutua to accede to her requests.

SUNY waived the opportunity to corroborate Mutua and impeach Singer-Blumberg after

ALJ Carlson graciously offered to accommodate SUNY by reconvening on another day

to bring Vice-President Nostaja in, even though Nostaja had no excuse for his absence.

The States failure to accept this offer must tip the scale in Malkans favor.8

LAW JUDGE: Ms. Vance, do you have any

additional witnesses?

MS. HOMES VANCE: Could we have a

moment, please?

LAW JUDGE: Yes.

MS. HOMES VANCE: We rest.

LAW JUDGE: I want to note for the

record, I want to summarize a conversation I

had with Counsel this morning in theconference room before we began today. When

8Elwood Union Free School District, supra note 2; State of New York (division of Parole), 41

PERB 3033, n. 15 (2008).


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we broke, just before we broke yesterday

afternoon, there was some discussion aboutthe possibility of Mr. Nostaja being called

as a rebuttal witness.

Apparently, Ms. Vance, you have decidednot to call Mr. Nostaja; is that correct?

MS. HOMES VANCE: Yes. I believe youindicated this morning at our off-the-record

conference that if I wished to call

Mr. Nostaja that you would permit me to doso.

LAW JUDGE: That's correct. That's the

point I'm getting at right now because

frankly on the record yesterday afternoon Ithink I was pointing you in a different

direction.

MS. HOMES VANCE: You were less

inclined to allow that.

LAW JUDGE: Frankly, I was a little

miffed that he wasn't available today, but

on further thought about how his potentialtestimony became potentially relevant, I

realized that frankly it wouldn't be fair to

disclose you from that opportunity simply

because he wasn't available today, i.e., thenext day, after his involvement was raised

during Ms. Singer-Blumberg's testimony.

I just wanted to make it clear for therecord that I did give you that opportunity

to call Mr. Nostaja if you would like to and

you have decided not to.

MS. HOMES VANCE: Thank you, your

Honor. I appreciate what you just said and

we have decided that, I think it's -- youknow, I know that everyone wants to finish

today -- the Union, yourself -- we are all

willing to just let the record stand as it

is, and we will not be calling Mr. Nostaja.

LAW JUDGE: My point that I want to


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make it clear I was not pressuring you one

way or the other and that upon furtherreflection I wanted to make it clear you

have that opportunity.

MS. HOMES VANCE: Thank you.

MS. SINGER-BLUMBERG: Judge, just to

clarify, you started out by saying call himas a rebuttal witness, but he would have

been -- yesterday we talked about him being

a witness in their case in chief.

LAW JUDGE: That's correct. Yes, I'm

sorry. Yes, he would have been a witness in

their case in chief. The intended testimony

would have been to sort of rebut something.You're right. He would not called as --

classified as a rebuttal witness, correct.That's correct.

With that, I believe we are done as far

as the record goes unless you have any --I'm jumping ahead of myself.

Do you have any rebuttal testimony?

MS. SINGER-BLUMBERG: I'm not sure. I

need a minute to discuss that.

LAW JUDGE: Let's go off the record fora couple of minutes and give you an

opportunity to think that through.

We're off the record.

(A recess was taken).

LAW JUDGE: Back on the record.

Do you have any rebuttal?

MS. SINGER-BLUMBERG: We do not, yourHonor.

LAW JUDGE: So with that, then, we're

done at least for this part of the process.


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(Transcript, pp. 376-379.) This gap in its proof meant that SUNY failed to counter the

UUPs evidence that Dean Mutua was aware that Professor Malkan was proceeding

through the UUP. In the absence of Nostajas testimony, the only reasonable inference

would be that Vice-President Nostaja met with Dean Mutua and, as an experienced

Human Resources professional, would have told him that he was dealing with the union.

In light of the low threshold for the charging party at the prima facie stage, ALJ

Carlson erred when he not only failed to give any weight to Tara Singer-Blumbergs

report of her conversations with UBs Vice-Presidentthe Presidents second in

command (Transcript p. 114)but failed to even to mention them, which perhaps may be

accounted for by the unfortunate fact that more than two years elapsed between the last

day of the trial (April 1, 2010) and the issuance of ALJ Carlsons decision (November 8,

2012). Accordingly, it was clearly erroneous for him to hold that the evidence presented

by the charging party was insufficient to establish an inference of improper motivation.

2. The ALJ erred at page 21 of the Decision when he ruled that the UUP hadfailed to establish a prima facie improper motivation charge because it had notestablished an inference that the protected activity was the but forcause of

DeanMutuasretaliation.

ALJ Carlson focused solely on the proximity in time between the unions

intervention and the delivery of the notice of non-renewal to Professor Malkan. The

UUPs final intervention on Malkans behalfwas initiated on June 11, 2008 and Malkan

was notified of his termination on August 28, 2008. Although ALJ Carlson conceded

that the close proximity of the UUPs efforts toMalkans termination (less than two

months) (ALJ Decision p. 21) could be evidence of retaliation, he concluded that the

timing of Dean Mutuas action delivering the twelve-month notice of non-renewal on

the last day of the previous contract termindicated to him that the action was legitimate

because it was dictated by the Policies of the SUNY Board of Trustees (POBT) (ALJDecision p. 21).

9The opposite, however, is in fact true. Dean Mutua issued the twelve-

month notice on August 28 so that Professor Malkan would receive the absolute

9 Seehttp://www.suny.edu/board_of_trustees/pdf/policies.pdf(at 14) (twelve-month notice of

non-renewal required prior to expiration of term after two or more years of uninterrupted service).
http://www.suny.edu/board_of_trustees/pdf/policies.pdfhttp://www.suny.edu/board_of_trustees/pdf/policies.pdfhttp://www.suny.edu/board_of_trustees/pdf/policies.pdfhttp://www.suny.edu/board_of_trustees/pdf/policies.pdf


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minimum time to find another job. He complied with the twelve-month notice rule, in

other words, to make sure that Malkan would not get more than twelve months, which is

hardly proof that he had a legitimate business reason.

The POBT require a twelve-month notice of non-renewal, which commencesfrom whatever date the non-renewal letter is issued. It could have been issued at any

time. Professor Malkan also would have been better off if Dean Mutua had issued the

notice earlier in the summer rather than later because he would have had a significantly

better chance to find a new job. Dean Mutua issued the twelve-month notice when it was

already too late for Professor Malkan to be included in the first or second editions of the

AALS Faculty Register and was therefore relegated to whatever jobs came up later in the

hiring season.10

He issued the notice, in other words, at exactly the most damaging time

for Malkan in the law school employment cycle.

Moreover, there should have been more than a suspicion of anti-union animus

aroused by the timing of Professor Malkans termination because ALJ Carlson failed to

cite any evidence in the record that Malkans employment was in jeopardy prior to the

UUPs involvement. Malkan testified as follows:

Q. Now, you received a nonrenewal letter, which we'veentered into the record as Joint Exhibit 7, from Makau on

August 28, 2008 or thereabouts?

A. Yes.

Q. And this is a copy of that letter?

A. Yes.

Q. Prior to receiving this letter did the dean ever discussyour non-renewal status with you?

A. No.

Q. Were you aware that your renewal was under consideration?

A. I knew that the dean was supposed to issue a -- an

10Seehttp://www.aals.org/frs/far.php#dates(dates posted for AALS Faculty Appointments

Register and Faculty Recruitment Conference).
http://www.aals.org/frs/far.php#dateshttp://www.aals.org/frs/far.php#dateshttp://www.aals.org/frs/far.php#dateshttp://www.aals.org/frs/far.php#dates


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extension of my three year contract as required by the

terms of my contract, so I knew I was gonna be gettinganother letter. I didn't think it was gonna be a notice

of non-renewal. I thought it was gonna be a two-year

extension of my contract.

Q. But the first three years didn't expire until 2009,

right?

A. Right. So, I mean, at this -- at this point I didn't

expect to get any letter. I -- I expected sometime

during the course of the 2008-09 year I would receive aletter extending my contract for two years.

(Transcript pp. 70-71) To the same effect, Tara Singer-Blumberg testified that I had

talked to Jeff Reed about whether there was any indication that Jeffs appointment as

faculty was in jeopardy and Jeff Reed confirmed to me that that was not in play.

(Transcript p. 123)

Although there is ample evidence in the record that Dean Mutua intended prior to

the UUPs intervention to change the structure and staffing of the R&W program

(changes that Professor Malkan himself had originally recommended) (Transcript pp. 56-

57), there is no evidence in the record that he had also decided, before the UUP

intervened, to break Professor Malkans contractwhich expressly provided that his

instructional position was not tied to the R&W program in any particular form. (CP 3)

The only reasonable inference that can be drawn from SUNYs failure to explain the

timing of the employment decisionnot after the Dean fired Malkan as director of the

R&W program, but only after the union had come to his assistanceis that the unions

intervention was the but for cause of the Deans action.

3. The ALJ erred at page 22-23 of the Decision by disregarding direct evidencethat Professor Malkans non-renewal was not supported by a legitimatebusiness justification.

ALJ Carlson erroneously ruled that there was a legitimate business reason for

Malkans non-renewal. ALJ Carlson ignored the preponderance of evidence in the record

that proved that the justifications provided were in fact pretextual. Professor Malkans


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non-renewal letter (J 7) stated that he was being non-renewed because the Law School

has terminated the Research and Writing Program and is replacing it with the Skills

Program. This was the only rationale he proffered in Malkans letter for terminating his

employment, and therefore the only business reason that should be considered by the

Board.

The most important direct evidence that the stated purpose for Professor Malkans

non-renewal was false was that his contract expressly protected him from termination

based on a change to the curricular or administrative structure, or staffing model of the

ABA-required first-year legal writing program. The contract stated:

A change in structure or staffing of the law schools research

and writing program will not equate with for good cause toterminate or not renew your contract since your contract as

Clinical Professor is separate from your administrative

appointment as Director of Research and Writing. Should yourappointment as Director of Research and Writing end, you would

still maintain your position as Clinical Professor. In that capacity,

with the administrative workload of Director of Research andWriting, you would be expected to teach two courses each

semester as per the normal teaching load of all faculty. Thesecourses could be writing courses, IP courses or whatever teaching

load you mutually agree upon with the Dean and Vice Dean for

Academic Affairs at the time.

(CP 3, emphasis added.) Therefore it was irrelevant whether Dean Mutua decreed a

change or modification to the legal writing program or even if he terminated and

immediately replaced it with a functionally equivalent program. The only question was

whether the alteration resulted in the elimination ofProfessor Malkans instructional

position in the law school, which, the direct evidence shows, it did not.

When Mutua wrote the non-renewal letter to Malkan, on August 28, 2008, the

R&W program had notbeen terminated. In fact, no changes at all had been made to the

program at that time. When questioned on cross-examination, Mutua testified that in his

mind, the R&W program had been terminated (Transcript pp. 310-312, 316-317). In

reality, however, the only event that had occurred was that a faculty member had been

appointed to make recommendations and proposals on what changes, if any, should be

made to the R&W program (Transcript p. 316).


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In an attempt to circumvent the terms of Malkans contract and his procedural

rights as a clinical professor, the notice of non-renewal signed by Dean Mutua on August

28, 2008 addressed his termination as if he were a short-term instructor an at-will

decanal appointee with no contractual or due process rightsrather than a faculty

appointee, that is, a full clinical professor and long-term member of the voting faculty.11

(Transcript pp. 32-35) ALJ Carlson erred when he failed to take into account the

documentary evidence that Professor Malkans position as a clinical professor, who was

academically qualified and contractually entitled to teach a wide array of skills and

doctrinal courses (CP 2, CP 3), could not be affected by the transition from the legal

writing to the legal skills program or from the LRW course to the LAWR course,

unless the faculty, by formal vote of the Committee on Clinical Promotion and Renewal

(CCPR), endorsed the Deans determination that good cause had thereby been stated for

terminating his employment. (CP 8) It is hardly surprising that Dean Mutua refused to

allow the faculty to vote on this claim, in view of the direct evidence presented at the

hearing, including

the 1L course schedules that showed the same exact section of the same exact

course (R&W section L4), taught in fall 2008 by Professor Malkan, was being

taught by a replacement teacher subsequent to Malkans termination (CP 13, 14);

the April 15, 2009 memo from Professor George Kannar to the faculty on

behalf of the APPC (CP 7) and the September 2009 UB Law Forum article

featuring Professor Charles P. Ewing (J 9), both of which emphasized that the

transition from R&W to LAWR was continuous and evolutionary. Professor

Kannar wrote that the APPCs legal skills proposal did not propose the creation

of any new programs, and Professor Ewing was quoted as saying that the

program I have inherited is already solid and strong my goal is to make it one

of the best in the country.

11Dean Mutua wrote: As a result of these changes, I have given non-renewal notices to

all the instructorsin the defunct program. To be consistent, I am issuing this non-renewal notice to you sinceyou have been an instructorin the defunct Research and

Writing Program. (J 7) (emphasis added).


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These law school documents and authorized statements from senior faculty members,

appointed to their assignments by Dean Mutua himself, are direct evidence that his

purported reason for actingthe elimination of Professor Malkans instructional position

due to the termination of the legal writing program and its replacement by the legal

skills programwas pretextual and false.

4. The ALJ erred at page 22-23 of the Decision by disregarding

evidence that Professor Malkans non-renewal was inconsistent with theinstitutionsrules, procedures, and customary practices.

The law school facultys bylaws require that before a clinical professor may be

dismissed or terminated, the tenured faculty must make a recommendation to the dean in

the following forum and in the following manner:

Committee on Clinical Promotion and Renewal.

a. This Committee shall be composed of the Dean, who shall be Chair, and

all Faculty Members who are tenured or on an indefinitely renewablelong-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, ortermination of the appointment of a Faculty Member who is on an

indefinitely renewable long-term contract or on track for an indefinitelyrenewable 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 Committee voting in person at a

meeting.

(5) Two-thirds of the members of the Committee eligible to vote shall

constitute a quorum for the consideration of any matter coming before the

Committee. With respect to any specific matter to come before theCommittee, the necessity for a quorum may be waived by unanimous prior

consent of the members of the Committee. Each member shall be notified

by appropriate means three days before any meeting of the Committee.


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(6) Determinations on recommendations with respect to promotion,

including the granting of an indefinitely renewable long-term contract,renewal, dismissal, or termination of 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 taken by secret ballot.

(CP 8, see Faculty By-Laws III.E.4) (emphasis added). Dean Mutuas intransigent

refusal to obey the facultys mandatory rules and procedures should have raised a red flag

for ALJ Carlson that his motivation was retaliatory and illegal.

Dean Mutua did not allow the faculty to review Malkans non-renewal, either in

that forum or any other, including the facultys Grievance Committee (Transcript pp. 70-

71, 275-277) (CP 8). The effect was a complete denial of due processoverriding the

rules and procedures put into place by the faculty for the protection of its integrity and

academic freedomin which a dean took the extraordinary and unprecedented step of

firing a professor with a full-time, indefinitely renewable appointment, without

consulting or even informing the faculty.

The other two clinical professors whose contracts expired on the exact same date,

August 31, 2009, and were due to be renewed at the same time as the Malkans, didgo

before the committee, at which time they received favorable decisions from their peers.

That occurred on April 22, 2008. (Transcript pp. 84-87, CP 16) ALJ Carlson cited Dean

Mutuas excuse for this violation of the law schools personnel procedures that

Professor Malkan was not entitled to due process of any kind before this committee or

any other because he was teaching in the legal writing program, or, in Dean Mutuas

words, was out of category. (ALJ Decision, p. 15 n. 67; Transcript p. 15). This excuse,

however, represented a pretext for retaliation rather than a legitimate justification based

on the law schools rules and policies.

Professor Malkan explained that the faculty had initially recruited him at the

title/rank of clinical associate professor and six years later approved his promotion to the

title/ rank of full clinical professor with an indefinitely renewable long-term contract

because his faculty appointment, like that of most long-term legal writing professors at

accredited U.S. law schools, was protected by the ABAs clinical faculty standardABA

Standard 405(c):


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BY MS. SINGER-BLUMBERG:

Q. Hezel and Tomkins taught in the clinic, but did they hold

the same title as you did, clinical professor?

A. Yes, they were the same academic rank as -- as me, buttheir teaching assignments were through the clinics and

through courses related to the clinics. My teaching

assignment was in the legal writing program but, if Imight add, this is not unusual in the legal writing

field.

Legal writing professors throughout the country

receive long-term job security under the same A.B.A.

provision that the clinical professors do, 405-C, and in

many law schools, including Cornell and the University of

Michigan, all of the legal writing professors have theacademic title of clinical professor.

MS. SINGER-BLUMBERG: Okay. Thank you.

Nothing further.

(Transcript p. 103) By the time the faculty convened to approve the renewals of

Professors Hezel and Tomkins, April 22, 2009, almost eight months had passed since

Dean Mutua had notified Professor Malkan that he was being summarily terminated

without any institutional recourse except to apply for one of the new instructional

positions that would be publicly posted for the new legal writing program (J 7, CP 10).

Professor Malkan actually did so in order to protect himself career-wise and mitigate his

damages, but he was rejected by the administration without being granted an interview.

(CP 12, Transcript pp. 79-82, ALJ Decision, p. 17)

The way that Dean Mutua handled the non-discretionary contract renewal process

basically, by refusing to follow itis compelling evidence that he did not have a

legitimate business reason for what he was doing. (Transcript pp. 103, 226-227, CP 16)

In federal district court, on October 3, 2012, Judge Richard J. Arcara found that

defendant Mutua was determined to resist mandatory Law School consultation and

review of the plaintiffs termination in order to dismiss the plaintiff from the faculty, no


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matter what. (Slip Op. at 20-21.)12

The inference that Judge Arcara drew from the Dean

Mutuas reckless and callous disregard of Professor Malkans Fourteenth Amendment

right to due process was that he had an improper motive for terminating his employment

and was therefore subject to personal liability, under 42 U.S.C. 1983, for punitive

damages. Id. ALJ Carlson erred by concluding from the same facts that Dean Mutua had

a legitimate business reason for terminating Professor Malkans employment (ALJ

Decision 22-23) on a pretext that was so devoid of credibility that it would have the effect

of precluding him from finding employment elsewhere in the field of legal education.

(Transcript pp. 88, 380)

5. The ALJ erred at pages 4-5, 8 and 10 of the Decision when he quotedscandalous and defamatory testimony from Dean Mutua, without any

supporting evidence or corroboration.

Not only did Dean Mutuas testimonyabout Jeffs behavior, gratuitously

quoted by ALJ Carlson (ALJ Decision p.10), lack corroboration from any other faculty or

staff members, or from any document in a Deans Office or HR personnel file, but Dean

Mutua himself, on cross-examination, admitted that there was nothing about Jeff Malkan

to report to anyone in the university. (Transcript pp. 329) The only conceivable purpose

of Dean Mutuas testimony was to tarnish the characterand credibility of the person who

was the victim of his retaliation. ALJ Carlson had no justifiable reason for paraphrasing

and quoting this tainted testimony and erred by doing so. (ALJ Decision p. 10)13

The ALJ also erred by citing the purported criticisms of Professor Malkans job

performance as Director of the LRW program (ALJ Decision p. 8) submitted on Dean

Mutuas orders by the legal writing instructors on February 29, 2008 because Dean

Mutua not only failed to produce any of the instructors to testify, but also refused to

12 Malkan v. Mutua, 12-CV-236-A (Oct. 3, 2012) (Arcara, J.), available at

http://docs.justia.com/cases/federal/district-courts/new-york/nywdce/1:2012cv00236/88387/20/

13ALJ Carlson also quoted uncorroborated testimony from Dean Mutua that claimed Professor

Malkan was surreptitiously promoted to full clinical professor by his predecessor, Dean R. Nils

Olsen, Jr., subsequent to a vote to terminate his employment by the facultys Promotion andTenure Committee, on April 28, 2006. (ALJ Decision p. 2-3) Given the inflammatory nature of

this allegation, its implausibility, and the failure of Dean Mutua to provide any supporting

evidence or testimony whatsoever, it is difficult to understand why ALJ Carlson would report this

slander as if it were a credible and relevant fact.
http://docs.justia.com/cases/federal/district-courts/new-york/nywdce/1:2012cv00236/88387/20/http://docs.justia.com/cases/federal/district-courts/new-york/nywdce/1:2012cv00236/88387/20/http://docs.justia.com/cases/federal/district-courts/new-york/nywdce/1:2012cv00236/88387/20/


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produce the documents themselves, either to the court or to Professor Malkan as per the

UUPs requests on his behalf. (Transcript pp. 195-196) The ALJ therefore had no way

to assess whether Dean Mutuas statements about what the instructors had written were

true, much less whether the instructors themselves had been truthful in their statements to

him, given that they were well aware that Malkans directorship of the LRW program

was under attack by Mutua and that their own jobs were on the line. (Transcript pp. 59-

60)

Finally, ALJ Carlson inexplicably cited Dean Mutuas testimony asserting that

Professor Malkan was personally responsible for frustrating the law schools efforts to

improve the bar passage rate (ALJ Decision p. 4-5), even though the Dean admitted that

the bar passage rate had actually improved every year that Malkan was director of the

LRW program (Transcript p. 244), and, more to the point, could not explain how the

director of the first-year legal writing program could be held responsible for a multiple

choice test in six doctrinal subjectsthe multi-state bar examtaken at the conclusion of

three years of law school. (Transcript pp. 249-258)


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CONCLUSION

For the reasons set forth above, Charging Party United University Professions

respectfully requests that its Exceptions be granted, that the ALJs Decision dismissing

Charging Partys claim that the Respondent violated s.209-a.1 (a) and (c) of the PublicEmployees Fair Employment Act when it non-renewed Jeffrey Malkan from his position

as clinical professor in retaliation for his engagement in protected activities be reversed,

and that the Board find that the Respondent violated s. 209-a.1 (a) and (c) of the Act

when it non-renewed Jeffrey Malkan. Charging Party further requests the Board grant

the relief sought in the Improper Practice Charge.

Respectfully submitted,

Tara Singer-Blumberg

Labor Relations SpecialisyNYSUT

270 Essjay Rd.

Williamsville, NY 14221(716) 634-7132

Dated December 7, 2012

Documents

PERB Malkan Exceptions Brief 12-7-2012