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State of New York Public Employment Relations Board


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

of New York at Buffalo)




United University Professions Submitted By: Tara Singer-Blumberg Labor Relations Specialist NYSUT Regional Office 270 Essjay Road Williamsville, NY 14221 (716) 634-7132

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 2

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 threeyear 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 third year 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. 3

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 posthearing 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 a prima 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 a prima facie case must give rise to an inference that but for the protected activity the employer would not have engaged in the adverse employment action.

See, 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 Bd 41 PERB 7007 (Sup Ct New York County 2008) affd, 67 AD3d 567, 42 PERB 7008 (1st Dept 2009). 2 Elwood Union Free School District, supra note 1; United Federation of Teachers, Local 2, AFT, AFL-CIO (Jenkins) supra note 1.

This relatively low initial evidentiary threshold for establishing a prima facie case in circumstantial evidence cases is necessitated by the principles 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 a charging 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 to come 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 nondiscriminatory 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 nondiscriminatory 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 preponderance of 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.

United 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.

Elwood Union Free School District, supra note 1; United Federation of Teachers, Local 2, AFT, AFL-CIO (Jenkins) supra note 1.
5 6

Matter of Albany Public School Teachers Assn, 42 PERB 4528 (2009).

Elwood Union Free School District supra note 1.

Argument and Analysis 1. The ALJ erred at page 20 of the Decision when he held that the UUP had failed to establish a prima facie improper motivation charge because it had not demonstrated that Dean Mutua was aware of the UUPs involvement on behalf of Professor Malkan. In his decision, ALJ Carlson conceded that Professor Malkan was engaged in protected activity (the first prong of the prima facie test), but stated as his principal holding that the evidence failed to demonstrate that the unions involvement was personally known to Dean Mutua (the second prong). (ALJ Decision p. 20) This finding of fact is clearly erroneous. ALJ Carlson ignored evidence in the record when he reported that Dean Mutua was informed of Malkans requests on only two occasions. The evidence in the record proves that Dean Mutua was informed of Malkans requests on not two, but three occasions. A. Dean Mutua was advised of the UUPs involvement through two contacts communicated to him by his administrative assistant, Jim Newton. On March 27, 2008, Tara Singer-Blumberg initiated a contact with Jeff Reed, Director of Employee Relations, who contacted the Dean through his administrative assistant Jim Newton. On April 15, 2008, she was informed her request had been rejected. (ALJ Decision p. 11); On or about May 1, 2008, Tara Singer-Blumberg initiated a second contact with the Dean through Jeff Reed, who again proceeded through Jim Newton. On May 23, she was informed her second request had also been rejected. (ALJ Decision p.13) Regarding these two contacts with the Dean through Reed via Newton, ALJ Carlson concluded: The undisputed testimony establishes that in both communications initiated by the UUP on Malkans behalf, the Dean was told that the communications had come from Malkan. Thus there is no evidence that Mutua was aware of the UUPs involvement on behalf of Malkan. As a result, the UUP has failed to meet its burden under the second prong of the test. 6

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

It is undisputed that the Director of Employee Relations, Jeff Reed, was aware of the Unions involvement (Transcript pp. 348-358). It is also undisputed that SingerBlumbergs e-mail demanding that Mutua meet with Malkan was sent to both Jim Newton 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 (Transcript p. 373). That e-mail is the Unions request on behalf of Malkan (J 4). 7

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, what if 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, before he 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 to be a great place to work and we talked about the fact that a great place to work would provide the minimum that we were requesting, 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 or not 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 me and said that he would speak with the dean and try and have our requests granted.. Q. And following that conversation with Scott Nostaja, 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 we talked 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 to the 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.

(Transcript pp. 129-131) Dean Mutua, in contrast, flatly denied ever speaking to VicePresident 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 -- your removal of him as the director? A. I have never had a conversation or an exchange of any 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 VicePresident 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 the conference room before we began today. When

Elwood Union Free School District, supra note 2; State of New York (division of Parole), 41 PERB 3033, n. 15 (2008).

we broke, just before we broke yesterday afternoon, there was some discussion about the possibility of Mr. Nostaja being called as a rebuttal witness. Apparently, Ms. Vance, you have decided not to call Mr. Nostaja; is that correct? MS. HOMES VANCE: Yes. I believe you indicated this morning at our off-the-record conference that if I wished to call Mr. Nostaja that you would permit me to do so. LAW JUDGE: That's correct. That's the point I'm getting at right now because frankly on the record yesterday afternoon I think 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 potential testimony 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., the next day, after his involvement was raised during Ms. Singer-Blumberg's testimony. I just wanted to make it clear for the record 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 -- you know, 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 10

make it clear I was not pressuring you one way or the other and that upon further reflection 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 him as 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 for a 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, your Honor. LAW JUDGE: So with that, then, we're done at least for this part of the process.


(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-President the 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 had failed to establish a prima facie improper motivation charge because it had not established an inference that the protected activity was the but for cause of Dean Mutuas retaliation. 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 behalf was 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 to Malkans 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 term indicated to him that the action was legitimate because it was dictated by the Policies of the SUNY Board of Trustees (POBT) (ALJ Decision p. 21).9 The opposite, however, is in fact true. Dean Mutua issued the twelvemonth notice on August 28 so that Professor Malkan would receive the absolute

See (at 14) (twelve-month notice of non-renewal required prior to expiration of term after two or more years of uninterrupted service).


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 commences from 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've entered 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 discuss your 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

See (dates posted for AALS Faculty Appointments Register and Faculty Recruitment Conference).


extension of my three year contract as required by the terms of my contract, so I knew I was gonna be getting another 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 a letter 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. 5657), there is no evidence in the record that he had also decided, before the UUP intervened, to break Professor Malkans contract which 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 decision not after the Dean fired Malkan as director of the R&W program, but only after the union had come to his assistance is 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 evidence that Professor Malkans non-renewal was not supported by a legitimate business 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 14

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 to terminate or not renew your contract since your contract as Clinical Professor is separate from your administrative appointment as Director of Research and Writing. Should your appointment as Director of Research and Writing end, you would still maintain your position as Clinical Professor. In that capacity, with the administrative workload of Director of Research and Writing, you would be expected to teach two courses each semester as per the normal teaching load of all faculty. These courses 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 of Professor 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 not been 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). 15

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 rights rather 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.


Dean Mutua wrote: As a result of these changes, I have given non-renewal notices to all the instructors in the defunct program. To be consistent, I am issuing this nonrenewal notice to you since you have been an instructor in the defunct Research and Writing Program. (J 7) (emphasis added). 16

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 acting the elimination of Professor Malkans instructional position due to the termination of the legal writing program and its replacement by the legal skills program was 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 the institutions rules, 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 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 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 the Committee, 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.


(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. 7071, 275-277) (CP 8). The effect was a complete denial of due process overriding the rules and procedures put into place by the faculty for the protection of its integrity and academic freedom in 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, did go 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 standard ABA Standard 405(c): 18

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, but their teaching assignments were through the clinics and through courses related to the clinics. My teaching assignment was in the legal writing program but, if I might 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 the academic 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 it is 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


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 quoted scandalous and defamatory testimony from Dean Mutua, without any supporting evidence or corroboration. Not only did Dean Mutuas testimony about 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 character and 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

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


ALJ 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 and Tenure 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.


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. 5960) 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 subjects the multi-state bar exam taken at the conclusion of three years of law school. (Transcript pp. 249-258)


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 Public Employees 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 Specialisy NYSUT 270 Essjay Rd. Williamsville, NY 14221 (716) 634-7132 Dated December 7, 2012