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Case 17-38, Document 30, 02/17/2017, 1975447, Page1 of 158

17-38-cv
Wniteb $->tate1l qcourt of ~ppeal1l
jfor tbe
$->econb <!Circuit
Jeffrey Malkan,
Plaintiff-Appellant
v.
Makau W. Mutua,
Defendant-Appellee
Charles P. Ewing
Defendant

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF NEW YORK

APPENDIX FOR PLAINTIFF-APPELLANT - VOLUME I

Jeffrey Malkan
Plaintiff-Appellant, pro se
12 Valleywood Ct. W,
St. James, N.Y. 11780
(631) 862-6668
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INDEX TO APPENDIX
Special Appendix

Docket Sheet and Judgment. ................................................................................. 2


Notices of Appeal, January 3, 2017, January 13, 2017 ................................................. 15
Complaint, March 23, 2012 ................................................................................. 20
Answer, August 3, 2014 ..................................................................................... .31
Decisions Below in Malkan v. Mutua ........................................................................................... .35

1. Decision of Hon. Michael A. Telesca, filed 12/18/2016 ............................................ 36

2. Report and Recommendation of Hon. H. Kenneth Schroeder on summary judgment motion,


filed 12/112015 ............................................................................................... .42

3. Report and Recommendation of Hon. H. Kenneth Schroeder on Rule 11 motion, filed


12/1/2015 ...................................................................................................... 54

4. Decision and Order of Hon. Richard A. Arcara on motion to dismiss and motion for stay, filed
10/3/2012 ...................................................................................................... 94

Decisions in Related State Court Litigation .............................................................. 118

1. Memorandum Decision of Appellate Division, Fourth Department, in Malkan v. State of New


York (SUNY Buffalo), filed 12/23/2016 ................................................................. 119

2. Decision of Court of Claims, Hon. Michael E. Hudson, in Malkan v. State of New York
(SUNY Buffalo), filed 6/19/2015 ........................................................................ .120

3. Decision of Court of Claims, Hon. Jeremiah J. Moriarty, III, in Malkan v. State of New York
(SUNY Buffalo), filed 9/6/2012 ........................................................................... 130

4. UUP-NYSUT v. State University ofNew York (SUNY Buffalo), Board Decision, filed
8/29/2013 .................................................................................................... .140

5. UUP-NYSUT v. State University ofNew York (SUNY Buffalo), ALJ Kenneth S. Carlson,
filed 11/15/2012 ....................................................................................................... .153

Volume I

Motion for Separate Trials, Charles P. Ewing, Aug. 13, 2014 .......................................... 176
Memorandum ...................................................................................................... .181
Declaration of Randolph C. Oppenheimer, Esq ......................................................... 195
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Appendix (Tabs A-P), Declarations, Depositions, and Exhibits of Jeffrey Malkan, Dianne Avery,
Susan V. Mangold, Robert J. Steinfeld, Rebecca Redwood French, Shubha Ghosh, Alfred
Konefsky, Isabel Marcus, Lynn Mather, Makau W. Mutua, Charles P. Ewing .................... .197

Makau Mutua Deposition (excerpt), Dec. 19, 2013 .................................................... 300

Volume 11

Declaration ofMakau Mutua, June 26, 2015 ............................................................ 332

Correspondence between Frederic Ostrove, Esq. and David Sleight, Esq. (October 2014 to March
2015) .......................................................................................................... 354

Documents (2006-2014) .................................................................................... 374

1. Malkan contract with ABA Standard 405(c), Oct. 19, 2006 ............................. 375

2. Policy on LRW faculty reappointments, Dec. 9. 2009 .................................... 382

3. Mutua notice ofnonrenewal, Aug. 28, 2008 ............................................... 383

4. Malkan offer letter, July 25, 2000 ............................................................ 384

5. Malkan Deposition (excerpt), Dec. 18, 2013 ............................................... 387

6. Malkan interview schedule, June 25, 2000 .................................................. 398

7. Declaration of President Satish K. Tripathi, Dec. 12, 2013 ............................... 399

8. ABA Self-Study, Jan. 2009, and Findings of Fact, Jan. 2010 (excerpts) .............. .405

9. Mutua Statement of Undisputed Facts (Local Rule 56.1), June 7, 2014 ............... .411

10. Faculty Bylaws, Clinical Faculty Appointment Policy, Mar. 20, 2009 ............... .414

Complaint in Malkan v. Gardner, Erie County Supreme Court, Oct. 21, 2015 ................... .438

Policies of the Board of Trustees (excerpts), currentJune 1, 2014 ................................. .461


Case 17-38, Document 30, 02/17/2017, 1975447, Page4 of 158

Motion for Separate Trials, Charles P. Ewing


August 13, 2014

Motion for Separate Trials, Charles P. Ewing, Aug. 13, 2014 ......................................... .176
J\,1e1norandum.............................. . ....................................................................... 181
Deciaration of Randolph C. Oppenheimer, Esq ......................................................... 195
Appendix (Tabs A-P), Declarations, Depositions, and Exhibits of Jeffrey Malkan, Dianne Avery,
Susan V. Mangold, Robert J. Steinfeld, Rebecca Redwood French, Shubha Ghosh, Alfred
Konefsky, Isabel Marcus, Lynn Mather, l\1akau W. Mutua, Charles P. Ewing ..................... 197

Makau Mutua Deposition (excerpt), Dec. 19, 2013 .................................................... 300


Case 17-38, Document 30, 02/17/2017, 1975447, Page5 of 158

UNITED STATES DISTRICT COURT


WESTERN D"ISTRICT OF NEW YORK

JEFFREY MALKAN,

Plaintiff,
v. NOTICE OF MOTION

MAKAU W. MlJTUA and i2-CV-0236(A)


CHARLES P. EWING
in their individual e:apacitiest

Defendants.

MOTION ON BE;HALF OF: Defendant Charles P. Ewing

DATE, TIME ,A.ND PLACE To be determined by this Court


OFHEAR1NG:

SUPPORTING PAPERS: Declaration of Randolph C. Oppenheimer, dated


August !3, 2014; Memorandum of Law in Support
of Defendant's Motion for Separate Trials; and
Appendix to Memorandurn of Law with exhibits
Tab A - Tab 0, which includes Deciarations of
Dianne Avery, Rebecca French, Shubha Ghosh,
Alfred Konefsky, Susan V. Mangold, Isabel Marcus,
Lynn Mather, Robert J. Steinfeld, and Charles P.
Ewing

RELIEF SOUGHT: A.'1 order granting Defendant Ewing's motion for


separate trials and order that Malkan's claims
against Mutua be tried separately, together with
such further and other relief as the Court determines
to be just and proper

{!R.QUNDS: Fed. R. Civ. P. 42(b) an<l/or Fed. R. Civ. P. 20

NATURE OF ACTION: 42 U.S.C. 1983 (Civil Rights Act)

J<EPLY P.APE.RS Pursuant to W.D.N.Y. Local Ruic of


Procedure 7(a), the moving Defendant
advises of his intention to file and serve reply papers

QM!. ARGUMENT Oral argmnent is requested.

000017'7
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487

Dated: Buffalo, New York


August 13, 2014

s/Randolph C. Oppenheimer
Randoiph C. Oppenheimer, Esq.
Abigail D, Flynn-Kozara, Esq.

DAMON MOREY LLP


Atiomeys for Defendant
CHARLES P. EWING
The Avant Building - Suite l 200
200 Delaware Avenue
Buffalo, New York 14202-2150
716-856-5500 - Telephone
716-856-5510 - Facsimile
roppenheimer@damonmorey.com
akozara@damonmorey.oom

cc: Frederic D. Ostrove, F..sq.


Bryan Arbeit
Leeds Brown Law, P.C.
One Old Country Road
Suite 347
Carle Place, New York 11514
rostrove@lmblaw.com
bar\)eit@ledsbrownlaw.com
Attorneys for Plaintiff

David J. Sleight, Esq.


Assistant New York State Attorney General
for Eric T. Schneiderman, Esq.
New York State Attorney General
Main Place Towers
350 Main Street- Suite 300A
Buffalo, New York 14202
david.sleight@ag.ny.gov
Attorneys/or Defendant Mutua

Robert E. Ruggeri, Esq


SUNY Office of General Counsel
Universitrf Plaza
Albany, New York 14226
robertruggeri@sunyJ;:dq

Jessica M. Baker, Esq.

0000178
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cas~a!i&?l.<12QJi}{ilJl2M;OffJ~SD~ahl>995 FRtSl88'Ql/il.4Psff)a@CJ1: ~f 122

SUNY Office of General Counsel


3435 Main Street
216 Harriman Hall
Buffalo, New York 14214
jbaker4@buffalo.edu
Attorneys for Certain Non-Party Witnesses

0000175.l
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487

CERTIFICATE OF SERVICE

[ hereby certify t.h.at on August 2014, I filed the foregoing Notice of Motion, Declaration of

Randolph C. Oppenheimer, Memorandum of Law in Support of Defendant Charles P. Ewing's

Motion for Separate Trials, and Appendix to Memorandum with exhibits Tab A - Tab 0, with

the Clerk of the United States District Cou.."t for the Western District of New York using the

CMJECF system, which would then elect.ronicaHy notify the following CM/ECF participants in

this case:

Frederic D. Ostrove, Esq.


Brian Arbeit, Esq.
Leeds Brown Law, P.C.
rostrove@lmblaw ~-Orn
barbeit@Ieedsbrownlaw.com

David J. Sleight, Esq.


Assistant New York State Attorney General
david.sleight@ag.ny.gov

Robert E. Ruggeri, Esq~


Jessica M. Baker, Esq.
SUNY Office of General Counsel
robert.ruggeri@.suny.edu
jbaker4@buffalo.edu

s/Randolph C. Oppenheimer
Randolph C. Oppenheimer

Doc #1950.G/,l.

0000180
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
MEMORANDUM OF LAW
Plaintiff, IN SUPPORT OF
CHARLES P. EWING'S
v. MOTION FOR SEPARATE
TRIALS
MAKAU W. MUTUA and
CHARLES P. EWING
in their individual capacities, 12-CV-0236(A)

Defendants.

PRELIMINARY STAIEMENT
This Memorandum is submitted in support of Defendant Charles P. Ewing's ("Ewing")

Motion for Separate Trials. Plaintiff Jeffrey Malkan's ("'Malkan'') claims against Dean Makau

Mutua ("Mutua") should be tried separately to avoid foreseeable "spill-over effect" and indelible

prejm:lice to Ewing, who truly is an innocent bystande; to ti.e events t.'1at led to .Malkan's 1983

employment claim. Ewing played no role in Mutua's decision to non-renew Malkan's tenn

appointment as Clinical Professor. Ewing entered the picture later, as part of a good faith

process within the Law School to try to resolve in a collegial fashion differences among faculty

members. Instead of getting a reward for bis selfless service and professionalism, his good deed

has been punished. Lest the punishment become even worse, he asks for a separate trial.

Malkan is a former Clinical Professor at the State University of New York at Buffalo Law

School (the "Law School"). Mu.tua is the Dean of the Law School. Malkan was hired as Clinical

Associate Professor in 2000. (Exhibit A: Malkan Dep. 35; ExhibitB: Defendant's Ex. 6). On

0000181
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Ca~~~ ~~1> ~-~.4P.~0rof4122

April 28. 2006, the Committee on Clinical Promotion and Renewal ("CCPR") 1 held a meeting to

discuss Malkan's promotion to Clinical Professor. (Exhibit C: Avery Dep. 22-23). Mutua

(who was not then Dean of the Law School) attended the meeting as a tenured faculty member.

Also in attendance were Professors Susan Mangold, Dianne Avery, Errol Meidinger, Elizabeth

Mensch, Fred Konefsky, George Kannar, Tony Szczygiel, Rob Steinfeld, Rebecca French, Bert

Westbrook. Shubha Ghosh, Janet Lindgren, Marcus Dubber, Stephanie Phillips, Barry Boyer,

Jim Gardner, and Guyora Binder. (Exhibit C: Avery Dep. 74-76; Exhibit D: Plaintiff's Exs. l

& 17). Though she arrived late, Professor Isabel Marcus also attended 1he meeting. (Exhibit C:

Avery Dep. 76). Avery artd Mangold took notes of the meeting. (Exhibit C: Avery Dep. 23;

Exhibit D: Plaintiff's Ex. 17; Exhibit E: Mangold Dep. 17-18; Exhibit D: Plaintiff's Ex. 1).

Avery testified, and her contemporaneous notes confirm:

We then had a vote on [Ma1kan's] candidacy for clinical full professor for an
appointment to - promotion to the position of a clinical full professor from his
position as clinical associate professor.

That vote I can see - I remember at the time the vote passed by a majority vote
and I can see from my contemporaneous notes that the vote was nine yes, seven
no and three abstentions.

(Exhibit C: Avery Dep. 28; Exhibit D: Plaintiff's Ex. 17)

Mangold, who was then Vice Dean for Academic Affairs and chaired the meeting in the

Dean's absence, testified: "The outcome [of the vote to promote Malkan] was that he was

appointed and, you know, to the - reappointed recommendation for reappointment to full clinical

1 Under the Faculty Bylaws, the Law School's Committee on Clinical Promotion and Renewal ("CCPR") has
"jurisdiction over and the power to make recommendations with respect to promotions, 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 fur [one]." (Exhibit D: Plaintiff's Ex.
8, p. 8). The CCPR is comprised of"all Faculty Members who are tenured or on an indefinitely renewable long-
tenn contract"; it is chaired by the Dean. (Exhibit E: Mangold Dep. l l4-ll5; Exhibit D: Plaintiff's Bx. 8, p. 8).

0000182
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cami.se~'.!2.<~114K% ~mf!MS9J.~ ~l#M44P~s &<i'1122

professor.' 1 (Exhibit E: Mangold Dep. 17 & 68). Mangold's contemporaneous notes reflect the

same vote count as Avery's. {Exhibit E: Mangold Dep. 18; Exhibit D: Plaintiff's Ex. I).

Steinfeld testified that ''there was a vote in favor of Professor Malk:an's promotion to

clinical professor." (Exhibit F: Steinfeld Dep. 9). And FrenchRedwood testified: "[t]he topic

of his tenure as a clinical professor was brought up and we voted on it. . . . It was not

l.ll1animous, as I recall, but it was a majority or a significant percent.age was pro, granting

Professor Malkan [full clinical professor status]." (Exhibit G: French~Redwood Dep. 6).

To date, Mangold, Avery, Steinfeld and French - as well as three others who attended the

April 28, 2006 CCPR meeting (Shubha Ghosh, Alfred Konefsk.y, Lynn Mather and Isaber

Marcus) - have also attested under penalty of perjury that the CCPR voted by secret ballot at that

meeting to recommend that Jeffrey Malkan be promoted to Clinical Professor (Exhibit R:

Declarations of Dianne Avery, Rebecca French, Shubha Ghosh, Alfred Konefsk.y, Susan

Mangold, Isabel Marcus, Lynn Mather and Robert Steinfeld).

Mutua testified at his deposition in this matter that the CCPR did mil vote on whether

Malk:an should be promoted to Clinical Professor; rather he testified that the CCPR voted to keep

Malk:an as Director of the Research and Writing Program for an additional year. (Exhibit I:

Mutua Dep. 36). Mutua swore that the CCPR voted to have Malkan stay on "as a caretaker of

the program while we also look for another Director and he look for another job elsewhere."

(Exhibit I: Mutua Dep. 37).

Mutua also t-estified that the vote he contends was taken to retain Malkan as Director of

Research and Writing for one more year was so close that someone at the meeting questioned

whether abstentions should be counted as negative votes, (Exhibit l! Mutua Dep. 39). Then

Mutua testified that former State University of New York at Buffalo President William Greiner,

0000183
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Ca~Sel~~Al:lm ~ffi@fft~.zi ~all'44P~1'8f~f4122

who was a member of the Law School faculty, spoke at the meeting and advised the CCPR on

the question of how abstentions should be counted. (Exhibit I: Mutua Dep. 39-40). Contrary to

Mutua's testimony about Greiner's statement is the uncontroverted fact that it would have been

impossible for Greiner to speak at the meeting because, as is abundantly clear, Greiner was ,rull in

attendance at this CCPR meeting. (Exhibit D: Plaintiff's Exs. 1 & 17; Exhibit H: Avery Deel.,

Prior to his testimony in this action, Mutua testified under oath at the administrative

proceeding relating to Malkan's nonrenewal before the Public Employment Relations Board

('"PERB"), ''There was no vote on [the promotion] issue." (Exhibit J: PERB Transcript, Vol. 3,

p. 291). According to Mutua. Malkan was not going to be promoted following that meeting

because the CCPR never voted on his promotion at the meeting. (Id.) Mutua testified that there

was no subsequent meeting to vote on Malkan's promotion. (Id.) So, accottling to Mutua - and

only Mutua - Malkan was promoted to Clinical Professor without a recommendation from tlie

CCPR. Mutua contended, therefore, that then-Dean Nils Olsen had no authority to recommend

Malkan be promoted to Clinical Professor because he acted absent a recommendation from the

CCPR. 2 (Id.)

Mutua continues to insist that his recollection of the April 28, 2006, meeting is correct,

even after four faculty members in their depositions in this litigation have c.ontradicted his

version of events. On December 19, 2013, he categorically maintained under oath that there was

no vote on Malkan's promotion to Clinical Professor and that the only vote that took place was

on whether Malkan should be allowed to continue for an additional year as Director of Research

and Writing. Mutua testified: "I remember this very clearly." (Exhibit I: Mutua Dep. 43). To

4 This seems to contradict Mutua's theory in this litigation that he has the right, ab8ent recommendation from the
CCPR, to non-renew Malken's appointment.

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date, no one else who was present at the meeting remembers what Mutua claims to remember

For instance, shortly after the cor.clusion of the CCPR meeting on April 28, 2006,

Professor James Gardner ("Gardner") complained to Professor Lynn Mather ("Mather") that the

CCPR had voted to recommend that Malkan be promoted to Clinical Professor. His

conversation with Mather took place in an incidental encounter with her in a stairwell in the Law

School building. Mather recalls that Gardner (who had opposed Malkan's promotion to Clinical

Professor), indicated his unhappiness with the result of the meeting of the CCPR, and that he was

"upset" at the vote to "promote" Malkan to Clinical Professor, deeming it a "mistake," but that

he had been "outvoted." (Exhibit H: Mather Deel., 1'fl 4~5). After the meeting, Gardner also

talked to Vice Dean Mangold, who chaired the CCPR meeting, about the outcome of the vote.

He questioned whether there had been sufficient votes for a positive recommendation, by a

majority of those voting, that Malkan be promoted to the rank of Clinical Professor. Mangold

recalls that "[f]ollowing the April 2&, 2006 meeting," Gardner "approached me and questioned

the way abstentions. should be counted," but that "[a]fter some discussion, Professor Gardner

accepted that the vote to renew and promote Professor Malkan was valid." (Exhibit H:

Mangold Deel.,, 6). That, of course, is more evidence that the vote actually took place.

The only rational explanation for Gardner's concern about the result of the vote \.Vas that

he had failed in his attempt to block the promotion of Malkan; that is, in fact there had been a

vote and Malkan had obtained a majority of the votes nec.essary for promotion to

Professor. Moreover, a few months ago, Gardner voiced his "surprise" when he was

informed that Mutua had testified under oath that no vote on Malkan's and

at the 2006 CCPR m~eting.

5
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Deel.,~ 20). "That's not what happened," observed Gardner. He then stated his recollection that

a vote had oc-eu.rred, that the vote was valid, and that Malkan had been promoted to Clinical

Professor. (Exhibit K: Ewing DecL, ~ 20).

Mutua, therefore, has testified twice under oath-at the PERB hearing and in his

deposition in this litigationc---as to his unique version of events at the CCPR meeting on April

2006. He has not produced a single witness--from the eighteen other tenured faculty members

who attended the CCPR meeting--to support his account, though he has had ample opportunity

to do so before, during, and after bis testimony under oath in two separate legal proceedings.

Respectfully, we believe the reason he has been unable to provide evidence of his version of

events is that none exists, that is, no witness can or will corne forward with an even vagueiy

similar story. 3

In March 2008, shortly after Mutua became Interim Dean of the Law School, he fired

Malkan from his position as Director of the Research and Writing PrograrrL Subsequently, on

August 28, 2008, Mutua, then Dean of the Law School, gave Malkan a one-year notice that his

appointment as Clinical Professor would not be renewed. FoHovving Malkan's notice of non-

1In the Statement of Undisputed Facts submitted in support ofMutua's Motion for Summary Judgment (f.29, p. 9-
10, filed June 7, 2014), Mutua's attorney concedes the discrepaooy in testimony, and thereby highlights the fact that
his client maintains a version of events sharply in contrast with all other testimony on the subject:

There is sharp disagreement regarding what occurred at the meeting and what exactly the Committee
voted on. Malkan and several third party witnesses deposed in this action claim that a vote was
taken on whether the Committee should recommend to the Dean that he be promoted to full Clinical
Professor, and fuat the vote was in his favor. Defendant Mama [sic], on the other [hand?], recalls
t.l:tat the meeting quickly devolved to a discussion of whether Malkan should continue as Director of
the Research and Writing Program, and that a vote was eventually taken on whether the Committee
should l'(X;ommend that the Dean offer Malkan a terminal one year appointment, and that vote came
out in Malkan' s favor.

Only Mutua and no one else subscribes !!) his na.rratlve. By stipulating this "sharp disagreement; Mutua's co11nsel
attempt,~to finesse the obvious and unoomfortable truth that not only is there a conflict in the testimony, but that
Mutua's version of events is uncorroborated by either other witnesses or docmnents. Indeed, the notion of a "'sharp
disagreement" is a conceit since Mutua is the only person with a different version of the events.

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renewal, Ewing recommended to Malkan that he invoke the faculty grievance process, provided

under the Faculty Bylaws, as "a way to try to amicably resolve the lack of communication"

between Malkan and Mutua." (Exhibit L: Ewing Dep. 23). On January 7, 2009, Malkan

submitted a grievance against Mutua to the Grievance Committee. (Exhibit A: Malkan Dep.

105, 117; Exhibit B: Defendants' Ex. 30). Whereas Malkan's claim against Mutua is based on

Mutua's decision to non-renew his term appointment without a recommendation from the CCPR

and Mutua's failure to bring the issue before the CCPR at all, Malkan's claim against Ewing

arises out of Malkan's subsequent invocation of the Law School faculty grievance process,

administered by the Grievance Committee. Ewing is a defendant in this action solely because a

faculty committee bad designated him as Chair of the Grievance Committee. After receiving his

non-renewal notice, Malkan also began pursuing various remedies though his union via PERB

administrative proceedings and in the Court of Claims. The Grievance Committee, through

Ewing, promptly began investigating the grievance in accorda.'lce with the Law School's Faculty

Bylaws. (Exhibit L: Ewing Dep. 23). Ewing had already spoken to Malkan. (Id.) Thus, his

next step was to speak to Mutua. (Id.) Bringing the faculty grievance process to a halt, Mutua

refused to speak with Ewing because of the other pending proceedings. Mutua told Ewing that

he could not discuss the grievance "because there is current litigation and threatened litigation by

Professor Malk.an against the university, the law school, maybe even the dean." (Exilibit L:

Ewing Dep. 23~24). The Grievance Committee's unanimous recommendation, therefore, was

that there was nothing the Grievance Committee could do until Malkan's other claims had been

adjudicated and Mutua was free to speak to the Grievance Committee. (Exhibit K: Ewing Deel.

1 1O; Exhibit L: Ewing Dep. 23-26).

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M{\LKAN;S PLAN TO SHOW MUTUA'S FALSE TESTJMOt{X

On November I 1, 2011, Malkan sent a letter to Lynn Vance, an attorney in the

Governors' Office of Employee Relations. (Exhibit M). Vance had represented the State

University of New York at Malkan's PERB hearing. In this letter, Malkan alleged: "Makau

Mutua gave false testimony under oath pertaining to a material fact in the case, specifically, the

faculty's approval of my reappointment to . , . the rank of full clinical professor." In support of

his allegations, Malkan included excerpts of Mutua's PERB testimony as well as emails he

received from funner Law School professor Markus Dubber, who attended the CCPR meeting,

and former Law School Dean Nils Olsen ("Olsen"), who did not. Professor Dubber advised

Malkan that the majority of the faculty members attending the CCPR meeting voted 'io grant

[MalkanJ tenure as a clinical professor: (Exhibit M). Olsen, who was Dean of the Law School

in April 2006, informed Malkan that, although he had not attended the CCPR meeting, Professor

Mangold called hhn shortly after the meeting ended a.'ld told him that the CCPR voted to

approve Malkan's promotion to Clinical Professor. Olsen also advised Malkan that he had "at

least one conversation . . . about the meeting and vote with a colleague that was entirely

consistent with reappointment." (Exhibit M).

Malkan then sent Vance and several SUNY employees, including Ewing, an email on

November 27, 2013, reiterating his evidence that Mutua testified falsely under oath. (Exhibit

N). In that email, Mallcan contended that Mutua lied under oath at the PERB proceeding when

he testified that there was no vote on Mallcan's promotion to full Clinical Professor. Malkan

stated: "This lie, of course, calls into question Dean Mutua's credibility on every other point of

his testimony ...." (Exhibit N).

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On April 20, 2014, Malkan conta{:ted State University of New York at Buffalo President

Satish Tripathi his concerns regarding Mutua' s faise testimony both before PERB and

during his deposition in this matter. (Exhibit 0). In that email, Malkan applied MuttJa's

conduct to the elements of 18 U.S.C. 1621, which is the federal perjury statute, and New York

Penal Law 210.15, the state penal statute.

On April 22, 2014, Malkan sent another email on this same topic to Liest Zwicklbauer

and copied Vance and several SUNY employees. (Exhibit P). Malkan focused on Zwicldbauer

based on her role as co-counsel with Vance in his PERB matter. (Exhibit P). Malkan stated in

that email that Mutua lied under oath, his lies were premeditated and caused a miscarriage of

justice. (Exhibit P).

Throughout this litigation, in blogs posted on the Internet, in letters addressed to various

University officials, and in articles published by the media, Malk:an has accused Mutua of lying

under oath. At the trial, l'.'litlkan wiH put on a parade of tenured Law School professors who will

testify to facts that support Malkan's contention that Mutua has lied under oath, twice.

If this case is tried against both Defendants, the strength of the evidence against Mutua

will indelibly stain Ewing because the jury will improperly impute Mutua's bad acts to Ewing.

'TI1is foreseeable and prejudicial taint cannot be prevented by an instruction. Accordingly, Ewing

requests that Malkan's claims against Muma be tried separately from lVialkan's ctaims against

him.

ll!E.~ARATE TRIAI,S S1'ANDARD: AVOIDtN"G PREJUQ.i~

Federal Rule of Civil Procedure 42(b) states: "SEPARATE TRLALS. For convenience, to

avoid prejudice, or to expedite and economize; the court may order a separate trial of one or

more senarate

0000189
Case 17-38, Document 30, 02/17/2017, 1975447, Page18 of 158

42(b) (emphasis added). Tbe decision to bifurcate a trial rests within the sound discretion of the

trial court e. g., Simpson v. Pittsburgh Coming Corp., 901 F.2d 277, 283 (2d Cir. 1990).

There is no bright-line test Rather, courts analyze the application of Ru1e 42(b) on a case~by

case basis. See, e.g., Monaghan v. SZS 33 Assocs., L.P., &27 F. Supp. 233, 245 (S.D.N.Y. 1993).

Courts consider whether separate trials will (1) promote convenience; (2) expedite the

proceedings; or (3) avoid unfair prejudice. Fed. R. Civ. P. 42(b). Only Qne of the issues mm;t be

met to justify bifurcation. Daniels v. Loizzo, 178 F.R.D. 46, 47 (S.D.N.Y. 1998).

Rule 21 provides that the "court may also sever any claim against a party.'' Fed. R. Civ.

P. 21. Courts and parties frequently blur Rules 21 and 42 "without maintaining the proper

distinction between the two." Keister v. Dow Chemical Co., 723 F. Supp. 117, 119 (E.D. Ark.

l.989). Trial courts have broad discretion to employ either of these rules, which are determined

using the same standard. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 {2d Cir,),

cert denied, 488 U.S. 848 (1988) (citations omitted). "The distinction between these two rules is

that separate trials usually win result in one judgment, but severed claims become entirely

independent actions to be tried, and judgment entered thereon, independently." Gonzalez v. City

of Schenectady, No. OO-CV-0824, 2001 U.S. Dist. LEXIS 14406, at *29-30 (N.D.N.Y. Sept. 17,

2001) (internal quotes and citations omitted).

Rule 20(b) provides: "Protective Measures. The court may issue orders--including an

order for separate trials-to protect a party against embarrassment, delay, expense, or other

prejudice that arises from including a person against whom the party asserts no claim and who

asserts no claim against the party." Fed. R. Civ. P. 20(b); see also Third Degree Films v. Does

286 F.RD. l 8&, 196 l'vfass.


Case 17-38, Document 30, 02/17/2017, 1975447, Page19 of 158

Document

caa,.J~1:t1CZ:c~~~A~ BggHm~Rt gg.-.f r!W~WbQ~~8:'l 4 Pfg~~\1& ~~ 122

"Prejudice can be shown 'where evidence as to the specific injuries suffered by plaintiffs

might influence the jury's consideration of other issues.'" Corrigan v. Methodist Hosp., 160

F.R.D. 55, 57 (E.D. Pa. 1995) (citing Keisler, 723 F. Supp. at 121). Thus, "[t]he potential that

the jury might consider damaging evidence against one party as evidence against a co-party is

grounds for separate trials." Moore's Federal Practice - Civil. 20.09 (citing Keister, 723 F.

Supp. at 120-122). This is called the "spill-over" effect. Id.

Malkim plans to make his case by showing that Mutua is a liar. Ewing wm be associated

with Mutua. Ewing and Mutua are not only co--defenda.nts, but are both long-term employees of

the Law School and both have held roles in the Law School's administration. Mutua, as Dean of

the Law School, in fact appointed Ewing to two of his adrninistrative positions~ Vice Dean for

Legal Skills in 2009 and Vice Dean for Academic Affairs in 2012. ff the jurors believe that

Mutua was dishonest (and it is foreseeable that they will based on the unwavering testimony of

every other witness), the jurors' distrust will likely "spill-over" im<l rub off on Ewing. See, e.g.,

Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 171 (S.D.N.Y. 2009) (''there is a risk that

trying all of Plaintiff's claims in a single trial could lead to guilt by association and spillover

prejudice!') (Internal cites and quotation marks omitted).

The risk of spill-over prejudice is particularly acute where, as here, the co-defendants

have different levels of culpability, In re Blech Sec. Litig. 94 Civ. 7696 (RWS), 2003 U.S. Dist.

LEXIS 4650, at *39) (S.D.N.Y. Mar. 27, 2003) ("Wben many defendants ... have significantly

different levels of culpability, the risk of prejudice is heightened.") (1nternal quotation marks

omitted). Here, Mutua - and Mutua alone - made the decision not to renew Ma!kan's

~--~A"'"""'a~ as Clinical Professor.~ This was done absent any reoon1n1endation fium, the C(~P.R_.

Mutua contends his Statement of Undisputed p. 7) that the Dean was "not

0000191
Case 17-38, Document 30, 02/17/2017, 1975447, Page20 of 158

17-38, Document 22, 02/01/2017, 1961823, Page191of487

ca~~.i<Z'-C~~~A~ BB88ITT~Rl gg_-f Ai~EffbQP.{~Jil1 4 PA~ri-Jt 2~ 122

to seek the faculty's recommendation to non-renew Clinical Faculty appointments," because "the

Dean had the discretion to either accept them or re,ject them." Mutua may or may not have been

free to ignore the faculty's recommendation, but whether he was free to avoid ascertaining that

recommendation in the first instance (as part of gathering and considering the totality of the

factors that might infonn his decision to tenninate Malkan's appointment as a Clinical Professor)

is at issue in Malkan's claims against Mutua. Malkan argues these are not mere paper rights to

be disposed of as inconvenient by a law school dean.

Ewing had nothing to do with any of Mutua's acts. Rather, Ewing has been swept up in

Malkan's lawsuit simply because he happened to be Chair of the Grievance Committee. It was

Mutua's refusal to cooperate with the Grievance Committee that prevented it from

recommending anything other than abeyance of Malkan' s grievance.

Malkan's claims against Mutua and Ewing are distinct. Malkan claims Mutua violated

his rig.I-its by not having the CCPR weigh in on Mutua's non-renewal decision. Ewing was not

part of Mutua's non-renewal decision and, in fact, Ewing played no role in any employment

decision relating to Malkan. Thus, Ewing would not even be a witness regarding Malkan's

claims against Mutua (or Mutua's defenses to Malk.an'$ claims).

Malkan claims Ewing did not properly process his grievance. Ewing's alleged

wrongdoing occurred well after Mutua's decision not to renew Malkan's term appointment. The

other members of the Grievance Committee, Profe~ors Janet Lindgren and Isabel Marcus,

would be likely witnesses. Ewing does not need to call Mutua to prove that Mutua's refusal to

cooperate with the Grievance Committee is what caused the Grievance Committee to

recommend that it suspend Malkan's grievance pending the conclusion of his other litigation.

12
Case 17-38, Document 30, 02/17/2017, 1975447, Page21 of 158

Document 487

The distinction between Ma!kan's claims against Mutua and Ewing and the lack of

substantiai overlap in witnesses establishes 1hat separate trials would not waste judicial

resources,

CONCLUSION

Just two months ago, writing for a unanimous Supreme Court, Justice Sotomayor

observed:

Sworn testimony in judicial proceedings is a quintessential example of speech as a


citizen for a simple reason: Anyone who testifies in court bears an obligation, to
the court and society at large, to tell the truth. See, e.g., 18 U. S. C. 1623
(criminalizing false statements under oath in judicial proceedings); United States
v. Mandujano, 425 U.S. 564, 576 (1976) (plurality opinion) ("Perjured testimony
is an obvious and flagrant affront to the basic concept of judicial proceedings").
When the person testifying is a public employee, he may bear separate obligations
to his employer-for example, an obligation not to show up to court dressed in an
unprofessional manner. But any such obligations as an employee .are distinct and
independent from the obligation, as a citizen, to speak the truth.

***
"Unlike speech in other contexts, testimony under oath has the formality and
gravity necessary to remind the witness that his or her statements will be the basis
for official governmental action, action that often affects the rights and liberties of
others. United States v. Alvarez, 567 U. S. _ , -- (2012) (slip op., at 8~9)
(pl",." l1'ty ""':n1'on1j "
W..LMJ: Vf"J:A

Lane v. Franks, 134 S. Ct 2369, 2379-2380, 573 U.S._ (June 19, 2014).
One would think that Justice Sotomayor's admonition applies with particular force when

the public employee is the Dean of the only state law school in New York False testimony

stains the legal process and the judicial system. It strips legal institutions of their integrity and

testimony by one co-defendant unnecessarily bears the potential to prejudice his co-defendant

and deprive him of the opportunity to fairly and truthfully offer his own defense. Defendant

0000193
Case 17-38, Document 30, 02/17/2017, 1975447, Page22 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page193 of 487

Ewing should not be compelled to assume the risk that a reasonable jury will: (1) readily

conclude that Mutua, his co-defendant and the Dean of a Law School, has twice offered false

testimony under oath against the interests of the plaintiff in the current action; and (2) thereafter

give Ewing's defense less weight than it deserves because of his previous close working

relationship with Mutua at the Law School.

Therefore, for the reasons set forth above, Charles P. Ewing respectfully requests that ihis

Court grant his Motion for Separate Trials and order that Malkan's claims against Mutua be tried

separately.

Dated: Buffalo, New York


August 13, 2014 sl Randolph C. Oppenheimsr
Randolph C. Oppenheimer, Esq.
Abigail D. Flynn-Kozara, Esq.

DAMON MOREY LLP


The Avant Building - Suite 1200
200 Delaware Avenue
Buffalo, New York 14202-2150
Telephone: (716) 856-5500

Attorneys for Defendant, Charles P. Ewing


Doo #l 95023l.I

14

0000194.
Case 17-38, Document 30, 02/17/2017, 1975447, Page23 of 158

487

castl~1e2 i~r29ci~~j~~s0 ?:fo~~2hr59~1 Fr!\re~iWi19H~ ~~~:tg1~ 122

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MAL.KAN,
DECLARATION Oit
Plaintiff, RANDOLPH C. OPPENHEIMER
v. IN SUPPORT OF CHARLES
EWING'S MOTION FOR
MAK.AU W. MUTUA and SEPAR.ATE TRIALS
CHARLES P. EWlNG in their individual
capacities,
12~CV ~0'236(A)
Defendants.

Randolph C. Oppenheimer pursuant to 28 U.S.C 1746 and under penalty of perjury,

declares and states:

L tam an attorney duly licensed to practice in the State of New York and before this

Court I am a partner with the law finn of Damon Morey LLP, attorneys for Defendant, Charles

P. Ewing ("Ewing'').

2. I am fully familiar with the facts upon which this affidavit is based. I make this

affidavit in support ofEwing's motion for separate trials.

3. Ail of the evidence to which reference must be made to decide Ewing's motion is

induded in Appendix to Memorandum of Law in Support ofChar!es P. Ewing's Motion for

Separate Trials. Defendant's Appendix includes: (1) Excerpts from the Deposition of Plaintiff

Jeffrey Malkan; (2) Cited Defendants' Deposition Exhibits; (3) Excerpts from the Deposition of

Dianne Avecy; (4) Cited Plaintiff's Deposition Exhibits; (5) Excerpts from the Deposition of

Susan V. Mangold; (5) Excerpts from the Deposition of Robert J. Steinfeld; (6) Excerpts from the

Deposition of Rebecca French-Redwood; Declarations of Dianne Avery, Rebecca French,

Robert

. !.

0000195
Case 17-38, Document 30, 02/17/2017, 1975447, Page24 of 158

Public Employment Relations Board Hearing relating to Plaintiff's non-renewal~ (10) Declaration

of Charles P. Ewing; (11) Excerpts from the Deposition of Charles P. Ewing; (12) Malkan

correspondence dated November 11, 2011; (B) Malkan Email dated November 27, 2013; (14)

Malkan Email dated April 20, 2014; and (15) Malkan Email dated April 22, 2014.

I declare under penalty of perjury that the foregoing is true and correct.

August 13, 2014


Buffalo, New York

Isl Randolph C. Oppenheimer


Randolph C. Oppenheimer
Doc #195036().!

- 2 ..

0000196
Case 17-38, Document 30, 02/17/2017, 1975447, Page25 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page196 of 487

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
APPENDIX TO MEMORANDUM
Plaintiff, OF LAW IN SUPPORT OF
v. CHARJ...ES P. EWING'S MOTION
FOR SEPARATE TRIALS
MAKAU W. MUTUA, and
CHARLES P. EWINGt
in their individual capacities, 12-CV-0236(A)

Defendants.

Charles P. Ewing respectfully submits this Appendix to Memorandum of Law. consisting

of:

TABA: Excerpts from the Deposition of Plaintiff Jeffrey Malkan


TABB: Cited Defendants' Deposition Exhibits
TABC! Excerpts from the Deposition of Dianne Avery
TABD: Cited Plaintiff's Deposition Exhibits
TABE: Excerpts from the Deposition of Susan V. Mangold
TABF: Excerpts from the Deposition of Robert J. Steinfeld
TABG: Excerpts from the Deposition of Rebecca French-Redwood
TABB: Declarations of Dianne Avery, Rebecca French, Shubha Ghosh,
Alfred Konesfsky, Susan V. Mangold, Isabel Marcus, Lynn M.iither
and Robert Steinfeld

TABI: Excerpts from the Deposition of Defendant Makau W. Mutua


TABJ: Excerpts from PERB Transcript
TABK: Declaration of Charles P. Ewing
TABL: Excerpts from the Deposition of Charles P. Ewing
TABM: Malkan correspondence dated November 11, 2011
TABN: Malkan Email dated November 27, 2013
TABO: Malkan Email dated April 20, 2014
TARP: Ma&an Email dated April 22, 2014

6' I\ f\ l\ I Cl ''1
Case 17-38, Document 30, 02/17/2017, 1975447, Page26 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page197 of 487

Dated: Buffalo, New York


August 13, 2014
s/ Randolph C. Op_penheimer
Randolph C. Oppenheimer, Esq.
Abigail D. Flynn-Kozara, Esq.

DAMON MOREY LLP


The Avant Building- Suite 1200
200 Delaware Avenue
Buffalo. New York 14202-2150
Telephone: (716) 856-5500

Attorneys for Defendant, Charles P. Ewing

co: Frederic D. Ostrove, Esq.


Bryan Arbeit
Leeds Brown Law, P.C.
One Old Country Road
Suite 347
Carle Place, New York 11514
rostrove@lmblaw.com
barbeit@ledsbrownlaw.com
Attorneysfor Plaintiff

David J. Sleight, Esq.


Assistant Nevi York State Att..omey General
for Eric T. Schneiderman, Esq.
New York State Attorney General
Main Place Towers
350 Main Street- Suite 300A
Buffalo, New York 14202
david.sleight@ag.ny.gov
Attorneysfor Defendant Mutua

Robert E. Ruggeri, Esq


SUNY Office of General Counsel
University Plaza
Albany, New York 14226
robert.ruggeri@suny.edu

Jessica M. Baker, Esq.


SUNY Office of General Counsel
3435 Main Street
216 Harriman Hall
Buffalo, New York 14214
ibalcer4@buffalo,~du
Attorneys for Certain Non-Party Witnesses
Doc #1950276,l

-2-

0000198
Case 17-38, Document 30, 02/17/2017, 1975447, Page27 of 158

487

ca~J~1 :fr-ci~tta:lli~~JA~ l6~~m~m g~-:? ~i~f(foi?:G?il 4 pf~! 6f4g~f 122

Exhibit
A
Case 17-38, Document 30, 02/17/2017, 1975447, Page28 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page199 of 487

cascJsJ1:~~:g)l.6n~3~~"5Al"!~s ~8JU1h~% %~:~ ~10 8N/!a%~4 if:~~~~ 9~ :i. 4.~

l UNITED STATES DISTRICT COURT


r
~ ... .2 WESTERN DISTRICT OF NEW YORK
rI ,
3 -------------------------------------------------
L 4 JEFFREY MALKAN,
rt.... 5
6 Plaintiff,
1 7 -vs'"' FILE NO. 12-CV-0236
i..
a MAK.AU W. MOTUA and CHARLES.P. EWING, in their
individual ~apacities,
9
10 Def~ndants.

11 -----------------~-------------------------------
r- 12 Examination before trial of d...,IUIS am.t.131.N, held
,
13 before Kelly S. Hairston1 Not~ry Public, at DNIOJI' MDltBT,
14 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
15 New York; on Wed."lesday, Dece.'l!ber 18th, 2013 at 10:00 a .m.,
16 pursuant to notice.
17 LBl:DS BBOlfH IM, p. c. I
I BY: UD1f AltBn, BSQ, ,
18 One Old country Road, Suite 347,
carle Place, New Yo~k 11514,
il.9 Ph. (716) 873-9550,
Attorney for the Plaintiff.
20
DA1llCll'I ' MD1ill!:1' , p c . ,
21 BY: IAllDOloft C. OltJ?11111Bl11XNl!Dit, ESQ.,
Avant Building,
22 200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Eh .. (716) 856-5500,
Attorney for the Defendant,
L. 24 Charles p. Ewing,
25

DeAOLO-CltOSBY lUDOR'!ntQ SBllV'lCl!IS I INC.


170 Franklin Street, Suite 601, Buffalo, New York 14202
716-853-5544
I
1.

....cc:'.~-...c::-,.-
..... --===~=~-,.,....-- . . . . --------- )

0000200
Case 17-38, Document 30, 02/17/2017, 1975447, Page29 of 158

Case 17-38, Document 02/01/2017, 1961823, Page200 of 487

Case 1:12-cv-00236-MAT-HKS Document 63-5 Fjled 08/30/14 Page 26 of 122


Case 1:12-cv-00236-RJA-HKS Document 59-4 Fi ed 08/13/14 Page 3 of 99

J. MAI.KAN -- BY MR.. SLEIGHT -- 12/lS/2013 35


(".

L ..
1 the south. It was -- I. felt like I was a little bit of
it ... 2 an outsider and I thought I could get a better job.
r
r
3 Q, So you left of your own accord?
'
(.' 4 A. Yes.
("'
j
5 Q. And how about the job ln Illinois, did you also leave
''- 6 there o~ your own accord?
7 A. No, because that was a capped contract. It wasn't a
'' ..
8 reqular tenure track line and ao tjley had a maximum
r
i 9 amount Of time and so I ran out Of time,
t..
10 Q. And then -- I'm sorry, but I can't remember --
11 A. St. John's.
12 Q. So you were there two years and then you went to
13 where?
14 A. Chicago-Kent four years, then two years at
15 St. John'$.
16 Q, .Aii.d what were you teachinq at St. John's?
17 A. Legal writing.
18 Q, Any doctrinal courses?
19 A. No.
("
! __
\,,
20 Q, And was your next position at the University of Buffalo
21 Lf:iW School?
22 A. Yes.
23 Q. How did you hear about that position?
24 A. My -- I talked to my advisor at Stanford. His name is
25 Professor Robert Weisberq, w-e-i-s-b-e-r-q, and he is a

,...
'!
t '

DePAOLO-CROSBY DOlU'I:NG SBaVJ:a:s, me.


r- 170 Frankl.in Street, Suite 601, Buffalo, New York 14202
I 716-853-5544
\ ..

0000201
Case 17-38, Document 30, 02/17/2017, 1975447, Page30 of 158

Document

J. MAI.KAN -- BY MR. ~LEIGHT -~ 12/18/2013 105

feel it was an.important e~ough case that they could


undertake it and they.did.
3 Q. Aside fr.om those two -- we~l, we have three really
4 avenues that you pursued. One was just discussians
with your colleagues on the faculty?
A. Yes.
Q. About what you might be ab~e to do and nobody there, at
S least as I understand your testimony, had any
9 sugge'stions aa to how you might proceed?
10 A. Just to write a letter to the whole faculty and make
11 sure they know about it which l did, I think.
12 Q. And then the second thing was to 90 to the union and
. .
13 they did two thinqa for you, which one was the Unfair
14 .Labor charge or Unfair Labor Practice charqe at PERB
is 1 ~nd the action commenced in t.~e Court of Claims?
16 1 A. And there was another thing, too, which was that I went
17 to the Grievance Committee.because I looked at the
18 faculty bylaws carefully apd I saw that well, here 1 s
19 another way to get your due process, so I tried that
20 approach, too.
21 Q. Now the grievance committee is a law school entity;
22 correct?
["'"'
23 A. Yes.
!
24 Q, And -- well, wi.thdrawn,
Other than those avenues, were you aware of any

DtaPAOLO-CROSB!' DOit~X:BG
170 Fr<?.nklin Street, Suite '601,
716-853-5544
___ ...... _
..... ...
~_ ~-

0000202
Case 17-38, Document 30, 02/17/2017, 1975447, Page31 of 158

J. MALKAN -- BY MR. OPPENHEIMER -- 12/18/2013 117


r-,

1 because .I think it's been amended subsequently to deal


2 with some other issues. But at the time when I was
3 terminated and during my last semester there, I think
4 these came into effect.
5 Q, That 1 s :fair, Let's -- just to be clear, these were the
\
I,.
6 bylaws that were in effect at the time of the
i te:cmination for which your complaint in this case
8 relates; correct?
9 A. Yes, yes.
10 Q. And in connection with your claim against, I'm going to
11 say Profess:or Ewing rather than Defendant Ewing, you
12 ref erred to a grievance process that has a reference in
j
'. 13 the aet of bylaws that I 1 ve given you in Exhibit S;
14 co:c~ect'?

151
16 Q. And your claim, as I understand it, ia as expressed in
17 your complaint in Paragraphs 24 through Paragraphs 26
lB and your complaint is Exhibit 4 and I 1 m putting that
19 one in front of you now;
20 A, :tes.
21 Q, So looking at your '?omplaint, you in Paragraph 24, you
22 indicate that you filed what you referred to as a
23 protest with the grievance committee headed by
24 Professor Ewing about Dean Mutua not having convened
the CC!?R ccn-mnittee to vote on your reappointment;

i'
170 Franklin Streetr Suite 601, Buffalo, New York: 14202
116~!!53-5544

0000(!03
Case 17-38, Document 30, 02/17/2017, 1975447, Page32 of 158

Case 17-38, Document 02/01/2017, 1961823, Page203 of 487

casca1i1:~:&9-iJ8~3~-~1A~s ~~u~~i\ %~~ ~N8 81/i)9i~4 fa~~i ~r ~J 122

Exhibit
B

0000204
Case 17-38, Document 30, 02/17/2017, 1975447, Page33 of 158

Case 17-38, Document 02/01/2017, 1961823, Page204 of 487

(.;("'/
U.nlver;ltJ at BffI
St1trd t'tdvi:r1ir,v nJ Nell' l'ork
5dtoilll of .._.
oir1mit ll'lt oun

l ~Crelt~ 'f
luly 25, 2000
. <!~.

Jeffiey Malkan . SEP 22 lfJOg gg


4$ Shore Road BY:~.
- ............ _ _ _ .e.. _ _ _ _ _
East Sotauket,. New York 11733

DeaiJeff
. .
This letter will confinn our recent' telephone COll.Wnlation conccining our .otlilr to you of
a lllcu.lty appoirlUtumt .at tho Um:wnity at Bu&1o Uw School commencin!f with the 2000-2001
academic year. ~ otall, tb.o\1lh. ret me reemphatize that OUf ficu)ty is very eii:husiasdc at f.hfi
prospect ot~c:omf.ng to .Buffilo.

As we~ your initW aa1ary will bet S&,000, with acbeduled raises of at least
three per cent fix dlo second and tbild yaar of y6ur employment. In additi011t you will receive
tfle generous New Yark Slate benefits pacJmae. which includes retiremeat eontributiom and .
health and dental insurance p'ls.ns. We will also pro\'idct $3,000 tbr summer support an.cl mist in
paying your moving expenm at tho outset of your PPOintment
Your initial app~ will be u an Clinioal Aaaocillle h>feuor arsd Director of
Rc:aearch an4 Writin'g fora rluee-year &ma. with ~11Mmt fbr ancond ttu..year during
your second l'Uf. In )'IJ1lr fifth year. tbe t=:ltyWill make~ fbr a ti:llld. tluee.-ycar
tenn. Thia pn'lCeR oftmeo-jear bllm ~the~ ble&itGiy.

Teaching raspoMibilidm at tho outset call fur your partici;ation in our~ and
Writing program, with two sections aadl 11111ester. ft iranticip_ab:d that. in fulure years. your
teaching ~ties ,in~ arid Writing' will bonducecl ta one clus per semester, and
that you could broade7l yourteaCblng to in.chide other counres or seminars kt aabstmtiveareu of
intensst' to you. ' :. ' .

. . To acCepC this ~t, pleue siga a copy ofthis lettor and rotuin it to me~ aoon a.s
possible. Please si'Ve me a call if'yuu have any qW!IStiom, or would liko to dlscuss.aQyt;billg
abQ~ this offer or the Law School

vr,1w-- . ., .
;.{Mltt r..:/
R. Nits Olsen,
Oeaa. and PlV&ssorof Law

lollnl#ll O'ltfMHd bt.JtUoallttGll, lluft'alll,. NY. 142fG.1100


Tell C111t 1149._ ffll: 171frl 64J.stlll .
............
....... ,
)

0000205
Case 17-38, Document 30, 02/17/2017, 1975447, Page34 of 158
Case 17-38, Document 22, 02/01/2017, 1961823, Page205 of 487

case 112-cv-00236-MAT-HKS Document 63-5 Filed 08/30/14 Page 31of122


...... -ease.l:12.--cv~00236-RJA-HKS Document 59-4 Filed 08113/14_ J:!ge a of 99

..
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Iat8W!!eyoubowbtt wu~ b,v1hoAC1111,yfQthorll'lkofCIWGal.Assoate~
on.lillJ t.1000,. MM4two~...,...~ Oa.Apil 19, - tho I!
Commltleo oa~audTOl1111l'O'V""4 &OPftlll'*to ClblicalPmtbacr. Clll.Oatober 19,
2006, .Dean N3ls OlMll afsilOda ooalrad: to -.r-ait
tmmllm mypci!IBO'lian.
ma ~ADASUmdud 40$\o';. ,.~ -.1 oaa.oalybe dCldlld~
I I
pattlh1a t1o OM tllat1l,llllllt to .....a--
ana~ of"g!:!od ~wJJla!l:111111111!hd:!cO'lliy'h~~"~.tliilme
w RPXtto wait er ICllllOadilr OIJlllly~ afGB. 'Dlo oomraot 111a1111 dllt tlds Dldmd
lllld ii lmudod to p:ote;tmy llOlldcmlc :lhodom.
To Bder CiWti!f my lltllrlll-aiDoo I dcaot IQlaallf macJ&iB a cUalo-tha COl'1U1lot-.
~"a
cbaapfn du! n.t'&'llla cr*'1illlln ofdlo law achool'll ~- wrltiq i;n&mll" WCll!ld llOt
~11"'Boocl_.hahadagm,~liadlnt:.tlproi\!llor. Ifr:ny
~ appcRnementu DbalorotGlo R&Wpq1111.\ Gldldby mut\lal CCllllllllt ar :
olhtnleo, my~~ WGlll4 CCllltlmlo adlwauld ccrdinlle tD tOlllkkipl wdtlllg
l!ld otla.' aoursea, 11 dnmlNd by mo lllCl tlie V!ce.DoaiLat 1'fle lime. .
O!l !&ch 12. 2008, ll 1bol!lh1dhlofsp.ingbtea1r. MabuMUlua demanded my~ u
Dltciclorof !Do Ruclerola & Wrldog ~ lllli tbD il:lUm9ing def nntan Md to tbD Cllltlro
~~mymrmal. Througlloat'lko~otdiorq:idngllCllllOllll:lr,l
~8Cll1Ptaaexp1anidall.ibr\\'hyIW beea~whiatdl. 1lll-1yhuto. T1ae
ut.lP. woddngdlDJPthe . . . . . .1~1'1anl18~~aa.mybehsl(
'
b\lt ~Mmuardlled proVide *".,..mngM ~
Ou Mav 1. 2008, t1le fllca1ty ~ )ilbD MmDa 1XI appoint atemed iilcu1fy mamb11r "lo
dMloJ> apmPOlllf' h alldl1s tmldfngPft)pm flat wooJd"bring U'lllis one'11Dbrt11a" !be &st
yeatlep\ wddng COllrtO ad a~ af'UJ!l*' dhialoa atdllJCOIUiOS, esaludlas clfnics. "!bit
Ultr lllfllll.Mr ..... aat'bmW "Wmlllatotbeoatent-alllld 11ddagprogtam.end to Ibo
llldllt tU detwmlnalf.on: fl llllldo tltat clmglll ia b plXlpn.lh llOClllll8lltY. wpt'OP080 c'illdlp..
No :eporthlla yetbeoamade lllld DO~ )'lltPJCIPClled.

EWING 000122

0000206
Case 17-38, Document 30, 02/17/2017, 1975447, Page35 of 158

Case 17-38, Document 02/01/2017, 1961823, Page206 of 487

~~._,, _ _ ,casca\Ji:~:&?M~~tt%~s 0&r~%~Jt%tl t~~8d%.Wi~4 P~~ii ~f jJ 122

h(V' grillVllUl6 a.
hntthe~ fiiGt of'MelamMlliua'r:d.blal. to gimt amaada!orytll'o
ywOldlllsimlof'ftl,f Ollmltt :lve)'lllr 0Clltal.otfhatl'U111tollt ~ fll) 20la.tl.
mc1te ~cm the tblklwingrelali!cl ambll or ClllliSalmls:
It"
based

1. Milam Mutaa:BIDed 1D l:duglle ~ OfJJiV di&U!ilstl befbm the CCJ'!l!ldttM Oii.


I
I
CUaica\ PnlaaolkmandltaoMl .... ...., ~ hoWlllllq!.llred to do
llyfle.-..ty:1eted~by-tawt, llllCllaD.mJU. Iw. ~ llylleJliaulty,
DOttlloDeaa. aadthol)iea.cfoolnot !la9o1ho~ bdecl~ CfltJlid" ml

~-1d.~t~~~~a:=-
d11111111fp by llfmoattllo ,_.. liMleolUiaWfq of"iood oaue'b18114 on tho
. . . . . .olt!lo~ lllld 'wdtia&PRIS'llll" OOl!.lda't bolllOIO d1lblou8, pm that
Iepl wrilfa,gt.anAJU.reqairldlmJ'llllll'-... lllldtflatldudmi~aabtllqaa
tomydlsmiaaJ.~l!r~tolOlcilLhtyw ........ lllld'Wridq."

2. My miron! b lho !aoaJl.y came m I had SC111eJ1t 111.d rocemd t1ti ilWOllllllion of
the UUP, whidl, \1lmaP. 'NYSUT, ~ tomproseatme. The UOP bi allep:l. Iii a
. . lleilwidltbol'BD,MMlltlalM\'daa~my~inoidto
l'llla1ial!t._mo bbmllfillg 6o mdotloamy behdlt lil. this ad~ lnpeat the
llllogtilOll Qf'~lllinlte. .

3, I am llBBrilMld 1ltt fie~~ in wbk!h M!!!km! M!!1Uah!!!tnl8Uld JU !i!lce


ho aatumoc! ofllcc D&an. '111etlaaahll mafllt.mat:ift cbllyto aetaa ~of
~bytl'elltillgall . .~ wilhd.mty andCOlltfellJ, ~In
~ Aayonewflo has 10111. haw Ilia\1\1 beea fleeted in. the Plet,_ has
~altamriag.diapllv~ -~
I1i an ofnio abGYe, Mlbll Matuabat &ia:maad my Clll'eel'Pftlli** eclprotlqskm&l ~
fml:l!lpdmy ~ hldoitt, llld v1olml 1sc '1llldada otcondact tici taw eohoOI
~. Ikvoclonmybcltto avmdfnvoWiu& 1bo ~ta 1'1fadl&Ulel0 butMUID.Mlda,
anouaii stJNY llO'lllld, 1181 idJmi:ld NYatrr ODlllll81 t11at11e di DOt~1h action m
hutlkc:Ugaimtme. '11ietlmetem.ailllllgllelb8~=ot..n.Mll)'15,2009.iu1ion. I
~ mmt atk1ho CCJrnmil!oo GJ:ilftlllllCGll to oa my behalt
Slacenrly,

I
I
EWING 000123
Il
... J.! .
F

000020'7
Case 17-38, Document 30, 02/17/2017, 1975447, Page36 of 158

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t~I f !e .g1:1:f fri~ !i[~
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sm 11h11r ~rh1 .,.~ w 1- f


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1
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hhi dJi OHi~~ 1U }~:r~
.,.,l~lt !j"w. i~ I "''rltiitBl t ~l !Oo

lfil;l r '!-t~.t l(Jl.:ff;..ll.i. r ~f ,~~


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-~~

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Case 17-38, Document 30, 02/17/2017, 1975447, Page37 of 158

17-38, Document 02/01/2017, 1961823, Page207 of 487

cac~lf:~~e~?iWJA~ ~%~Hi~Rl &?~t /il~dog?{~8'.1 4 Pfg~9ro3~t 3b 122

Exhibit
c

fl IHHl? t\ ).(
Case 17-38, Document 30, 02/17/2017, 1975447, Page38 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page208 of 487

cae~l~~~;;eQ10~~~1\~~ Bgg~m:iW grr-t i=fi~d~?i~Jl'J 4 pfg~9ii3~ 8~ 122

[ 1

[
1 UNITED STATE DISTRICT' COURT
[ 2 WESTERN DISTRICT OF NEW OF NEW YORK

c 3
4 J~l'Jl'PY MALD.M,

[ 5 Plaintiff,
6 -against- 12-CV-0236

0 7
B
MA.lU.U w. MU~UA
individual capacities,
nd Chatlee P. BWIRG in thair

[ 9
Defendants ..
----------~---------------~------------------
10 Examination Before Trial of DI.Am.fa
[ 11
AVBR!, held before Heather Marcolini, Notary
Public, at The Avant Bui1ding~ 200 Delaware
Avenue, Bu'ffalo, New York, on November 21,

l 1~

13.1
2013 at 9:00 AM, pursuant to notice.
APPEARANCES: LXBDS BROWJil._LAW, J?.C.,
BJ:: 81\YAH AllBB IT, ZSQ. , .
[ 14 One Old Country Road, Suite 347
Carle Placer New York 11514
15 (516) 873-9550
Attorneys for th~ Plaintiff
[ 16.
f STATB OF HBW YORK Ol'J'ICZ OF ~Bl
~7 ATTORBBY QBWBRAL
[ is
BRIC ~. SCBWIIDBaHAlll,
BY: DAVXD J. SLBIGIT, BSQ.,
ASSISfAR'T ATTORKBY GZKRAL
i9 Main Place Tower
[ 20
350 Main Street, Suite 300A
Buffalo, New York 14202

c 21
22
(716} 852-6274
Attorneys for the Defendant,
Makau W. Mutua .
I
L 23
24 APPEARANCES CONTINUED ..
I
[ 25

[
[ '------DEPAOLO-CR.OSBY REPORTING SERVICES, INC. _ _ _ ____,
170 Franklin Street, Suite 601, auffalo, New York 14202
716-853-5544..,
[

000020~
Case 17-38, Document 30, 02/17/2017, 1975447, Page39 of 158

487

Cae,,, 51e:l~.-1c.v.;Pv923263-M_:AJTA-HHKKSS Document 63-5 Filed 08/30/14 Page 35 of 122


c... -i: .z-.. -00 6-R. Document 594 Filed 08/13/14 Page 12 of 99

r
l. 22

r - - - - - - - - - - 1 . ! ! S , AV!mY - BI Ma. ~I\ll ~ 11/21/13 - - - - - -

1 faculty will maet on Friday April 28 at 10 AM


[ 2 to review Jeff Malk~n's dossier for promotion
3 to clinical professor of law. It goes on to
4 say lunch will be served blah 1 blah, blah.
Q. Do you know, was this email sent t~ only you
or was it ~ant to the entire PIT committee?
A. This would of been sent to a list consisting
8 of the entire promotion and tenure committee.
C Q, And do you remember receiving the -- I guess
the initial dossier of ?rofessor Malkan?
[ u A. Yes, I do.
12 Q. And it also refers to an addendum in thie
13 email, do you remember receiving that?
A~ I dontt specifically recall it but I am sure
that I would have received it and it's not
[ unusual to r~ceive a~dendums after dossier is
17 put to~ether.

18 Q. And up at the top you respond that you will


19 attend the meeting?
20 A. Yee.
21 Q. And did you attend the meeting?
221 A. Yes, I did,
[ 231
i

24t (The following was marked identification:


[ 251 Exhibit 17.)

I
!'
!
t~--~-DEPAOLO.ot.OSBY REPORTING SERVICESi INC.---~----,-'
170 Franklin Street, Suite 601, ~Jew York 14202
7HH~53-5544

00002.LO
Case 17-38, Document 30, 02/17/2017, 1975447, Page40 of 158

487
Case 1:12-cv-00236-MAT-HKS Document 63-5 Filed 08/30/14 Page 36 of 122
Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 13 of 99

23

[
1
2 Q, r 1 m going to ask you if you recognize
3 Plaintiff's Exhibit 17r bate stamped 2362?
4 A. Yes, I do.
r 5 Q, And what is this?
L 6 A. This is a photocopy of my contemporaneous
7 notes that I made at the meeting of the ?&T
a committee on April 26, 2006: Although I
[ 9 notice that I wrote at the top 4/27 so the
.10 date --
[ 11 Q. The date should be 4/28?
12 A. It should have been 4/28.
13 Q. And then just up on the top there, these
141 initials are the people that were in
15 attendance?

r 16 A. Yes, it is.

r 17
18
Q. And of those names,
now Dean Mutua?
the MM, would that be the

19 A. Yes, it is.
20 Q. Could you tell me what happened at the meet
21 regarding Professor Nalkan?
22 A. Yea.

23 Q. And if you want to refer to the notes to he

241 you, you can,


25 A. If I recall the meeting, we met in the

r
L
170 Franklin Street, Suite New York 14202
716-1153-5544

0000211
Case 17-38, Document 30, 02/17/2017, 1975447, Page41 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page211 of 487


case 1:12-cv-00236-MAT-HKS Document 63-5 Filed 08/30/14 Page 37 of 122
Case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 14 of 99

[ 28

~-------'MS, AVD.l' - U WEI., ARBII~ - 11/21/13 - - - - - - - . . . ,


[
l Arter tne discussion continued for a
[ 2 while, a member of the faculty made some kind
3 of motion. I don't recall what the motion was
[ 4 specifically, motion to -- whether we already
5 had a motion on the floor to call the
[
6 question, whatever. But we bifurcated the
R
Ll
7 issue ofhis candidacy for clinical full
B professor from a.discussion of the nature of
[ 9 the resea~ch and writing program. We then had
10 a .vote on his candidacy for clinical full
[ 11 professor for an appointment to -- promotion

r 12
13
to the position of a clinical full professor
from his position as clinical associate

[ 14:
'1
professor.
15 That vote I can see -- I remember at the
[ 16 time the vote.passed by a majority vote and I
17 can see from my contemporaneous notes that the
[ 18 vote .was nine yes, seven no and three
19 abstentions . We then turned and we began to
[ 20 have a conversation that did not last terribly

[ 21 long because the prior part of the meeting had


22 gone on for some time and we were -- I think
[ 23 we were subsequently going to have another
24 a meeting of the full faculty following a
[ 25 1 unch.

[ I
F"'

L '-------nJCPAOLO-Ot08BY1llCPORTING SJ:RVICIS,INC.
170 Franklin Street, Suite 601, Buffalo, New York 14202
~
716"-853-5544
[

0000212
Case 17-38, Document 30, 02/17/2017, 1975447, Page42 of 158

[ 74

r - - - - - - - M S AWll - BY MR. SLl!ltGR!I.' ~ 11/21/'.1..3


f"
L
11 Q. No, about this lawsuit.
2 A. Oh about thia lawsuit, no, I have not had no
3 discussions about this lawsuit with him.
[ 4 Q. Can I see Exhibit 17. These are your notes

[ 5 from the -- we've established that --


6 A. I wrote the date ~-

[ 7 Q. You wrote the wrong date down so it's 4/281


8 this is th P&T committee meeting?
[ ' A, Yes, in 2006.

[ 1 :1 Q. Right. That c~nsidered Mr. Maltan'a

111 promotion. And I just want to ask you if you

[ 12 could, qo through these initials, DA is you?


13! A. Okay, yes.
r 141 Q. EM is who?
L
15 1 A. Let me point out there are two EM'e here. Ona
[" 16 of them would be Errol Meidinger.
17 Q. And the other?
[ 19 A. Elizabeth Mensch.
19 Is that FK?
[ Q.

20 A. FK, Fred Kcnefsky,

c 21
22
Q.
A.
GK?

George Kannar.
[ 23 Q. TS?

24 A. Tanya Segal.
ru 25 Q, RB.

[
I
L l__JJEPAOLO~CROSBYREPORTING SER"VICES,
170 Franklin Streat, Suite Buffalo, New York 14202
'716-053-5544

0000213
Case 17-38, Document 30, 02/17/2017, 1975447, Page43 of 158

487

75

1 A. Rob Steinfeld.
[ 2 Q. RF?

3 A. Rebecca French.
[ 4 Q, SG? If you can't remember we can go on.

[ 5 A. I' 11 come back to it in a second.


6 Q. BW?
7 A. Bert Westbrook, Oh SG is Shubha Ghosh who is
8 no longer on the faculty. Bert Westbrook.
9 Q. MM?
10 A. Makau Matua.
11 Q. JL?

r 12
13
A,
Q.
Janet Lindgren.
SM?
r
L
14
f
A. sue Mangold"
15 Q. MD?
[ 16 A. Marcus Dubber.
17 Q. s !?? ' '
[ 18 A. Stephanie Phillips.
19 Q, BB?

20 A. Bob Berger.
21 Q. JG?
22 A. Jim Gardner.
23 Q. And GB'f
r 24! A. Oh, BB would be -- sorry, BB would be Barry
L 25! Boyer and let's see Jim Ga am
I
r
L
L--~---~-][)EJ~ A<:>Lf)~C:RC)S]nl REPORTING SER,7ICES, INC. ___ .,_,_~
170 Franklin Street, Suite 601, New York 14202
iHH.l53-55H

0000214
Case 17-38, Document 30, 02/17/2017, 1975447, Page44 of 158

487

76

f..,- - - - - - - - M S . AWRY - BY MR, SL!llIGH!l1 - 11/21/13--------,


I
1 r blanking.
2 Q, If you can't remember i t ' s okay.
3 A. I had looked at this before, I had looked at
4 this before and recalled all the names and
5 now --
61 Q. Tell you what if
7 A. Guyora Binder.
8 Q. And then it says late, this IM?
nL 9 A. Isabel Marcus,

r
L
10 Q. So does that indicate that she came to the
11 meeting late'?
12 A. Yes, it does.
13 Q. Do you know even though -- well, was she there

;."4 I at the time c! the vote?


15 A. Xea.
[ 16 Q. Okay. And you Siiiid that the meeting became
1 ? and you used the word acrimonious?
[ 18 A. Yes,

[ 19 Q. And that there was same strong oppositiori?


20 A, Yes.
r
21 Q. -One of the people that you mentioned as
w
22 voicing opposition was Jim Gardner, is that
[ 23 :r i ?

24 \ A. Yes,
L 251 .Q, Can you tell me if you recall any of the other

I . \
L_-DEl'AOLO-CROSllYllE!ORTING SERVICES, INC. _ _ _ _ _
170 l?ranklin Street, Suite 60 Buffalo, New York 14202
J
r
L
i11!Hl53-55U

00002.L::l
Case 17-38, Document 30, 02/17/2017, 1975447, Page45 of 158

17-38, Document 22, 02/01/2017, 1961823, Page215 of 487

caa~:!1'-e~~MitJA~ 'aggjltJgRf gJ_ti ~~acbQrfgfJ 4 pfg~fa46t Bb 122

Exhibit
D

I
................ j ....
I

0000210
Case 17-38, Document 30, 02/17/2017, 1975447, Page46 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page216 of 487

!-~---~-~~~l1Gtai~~J..\~ . ~ii~~~-.~d:l li~~d~.ffi8'14 efg8e9rg4~at 122


.. ' ' ,
I
I .
l
!

!
I
.I

. /:: ~-y ,. I
7/J
-3;4b.
-~~T

'.
i
'

JM002800

0000211
Case 17-38, Document 30, 02/17/2017, 1975447, Page47 of 158

487

CaSB 112-cv-00236-MAT-HKS Document 63-5 Filed 08/30/14 Page 43 of 122


case 1:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 20 of 99

:3q7c ~
' '

t:JfJf ~~l~r--
~ IJ7-- (1 h\__~ (j-
vfL . /2 r-
- wl

00002li3
Case 17-38, Document 30, 02/17/2017, 1975447, Page48 of 158

y I
(J).: rf-1.J.. JI I I f!ij I/

''

. I/! @

\
\
\
Case 17-38, Document 30, 02/17/2017, 1975447, Page49 of 158

BYLAWS~ STANDINGORDBRS OF

'llmFACULTYOF

nm~ AT BUFFALO LAW SCHOOL

TitB STATB ~IWTY OP NHWYORK'.

I. BYLAWS
The Byla\W oomtiiute the~ :fur the Jmer.naI go~ of the Faculty
University at 81610 Law School, the State University of New York (the "Law
. af the
School"). u ~ Qn Aprll 22. 2008,

ll, OFFICERS

A. ~:Owm.

1. The Dean shall be the Foouhy's chfef admimstrative officer and~


performs the funetiooa of a deM. as ~ by the President af tho University at.
Buffi:do, the State University !Jf ~ew Yodt, and these Bylaws. These fillwtioniJ flh.al1
l'"'h
me~ .<:t. . ~Ii '
llJW.1.uu~ .....
.. ~4':1--'
.,..... '
....~ po~ d ""...._.
ana, __

a. ~.the Faculty in~ md other ~


:!l'lltt.m at the University level, .
b. ~ Pl'Qil'am.8 and pei:ooimed matt:em,

. c. r~ the F~ m. Im relations with the oo~


oommmity.

d, ~tbcBudgetm4Program~~

e, ~Faculty salaries fur review by the Vice P.i:es.ident or


Pmddem. '
f, 11n g ~
serving u mc:mber of the F~ Co~ on
A~ and oonductins negotiatfom with prospective
:taculty~.

a. clmlrlng the Co~ on Promotion mm TeI.l.l.lre Md the


~on. CihUCal ProtllOtk.mimd ~.

1
JM002522

00002lU
Case 17-38, Document 30, 02/17/2017, 1975447, Page50 of 158

487

(S) Two..dibds of the mem.ba of the ~ eligible t.o vote


~ oomtitute a quorum for 'the oomii.deration of any mattet'
~ bd:n the ~. With n:ispoot tn any !lpeclfic
matter m eotne befOre the Committee, thA: nec.esmy for a
be '\lllaiwd by l.lilmim.ou8 prior ~ of the
the Committee eligible t.o vot.e on such %1'.W:t:ef.
IlaOO ~ el.ig!.ble to vote cm my ~ shall be notified
by approprim ~ ti:ireo days before any mtedng of the
Committee.
(6)~ Oii.~ with~ to
promotion, mruuding trus pnq of ~ dismlll!al, or
~on of the appoi.ntmmt of a Faculty Mei:nber who is
tenured or on tenute'tmduhall be taken bY secret balfot.

4. Commit.!i;tmiClinigjPmmsmm!imdR.o~.

a. This Co~ llball be oomposed of the Dean. who shall be Chm,


. and all Faculty :Memba who are tenured or m an hlddinitely
renewable long-ter.m. oontraot

b. 'nUa ~ Wdl have jurhidiction over and the power to make


reoommendations with respwt m prom.otion, i.ncludfus the granting of
an ~~'y ~able k>ng~tet:m ~. :rmewel, di~ or
~ of the apiroimment of a Fwm!fir Member who is. on an
indefinitely renewable J.ongwtemt ~ or 011 tnd: for an
indefinitely renewable Iong~tmn ~ All ~CIIIS of~
~mall be ma as fullows:

(l) Protootion t.o tho rank of Clinical Profesoot flball be


~by amajority ofthoae members having~ or
ha.vhlg an ~ly renewable 1~ oontnwt mu.f the
mtAk of'~ E'rofesscr voting in per.son Ill a~-
(2) Promotion to the rank of Clinical ~e Prof.essor atW1 be
recommended by a miijorlty of those mcmbem ha.vfug tem.i.re or
having an indefinitely ~e !oog-=m. ~ md the
rimt. of Cllnica1 ~ or Clirdea! ~cie.te Professor
voth:lg in ~at am~.

(3) The ~ of an inliefl.J.dtdy ~le long-term contract


shall be ~eded by a ~ori.iy of the~ roting
mp~ma~. '
~wai. ~ or temiination of~ ~eint of 11.
F~ Member 'Who ia cm an ~tely renewlble long~tetm
Case 17-38, Document 30, 02/17/2017, 1975447, Page51 of 158

Document 487

---

____ ,
Case 17-38, Document 30, 02/17/2017, 1975447, Page52 of 158

487

Exhibit
E

oooozt::,3
Case 17-38, Document 30, 02/17/2017, 1975447, Page53 of 158

UNITED STATES DISTRICT COOR~

WESTERN .DISTRICT OF .NEW YORK.

Plaintiff,
-vs- Index No. 12-CV-0236
MAKAU W. HV~UA and C!ARLBS P. EWING, in thei~
individual capaoitiea,

---------------------~~!~~~~~~~:_____________ I
Examination Before Trial of SUSAN VIVIAN
MAUGOLD, held before Lindsay N. Truman, Notary
Public, at DAMON NOaE?, Avant Building, 200
Delaware Avenue, Suite 1200, Buffalo, New
Yark, on November 20th, 2013 at 1:05 p.m.,
pursuant to notice.

APPEARANCES: LB~DS BaOWN LAW, P.C.,


B!: BRYAR AJU!EI~, DSQ, 1
One Old country Road, Suite 347
Carle Place, New k 11514
(516) 873-.9550 .
Attorneys for the Plaintiff ..
DAMON MOIU!: Y
BY: ARrGAtL KOZARA., BSQ.,
Avant Building,
200 Delaware Avenue, Suite 1200
Buffalo, New York 14202
(716) 856-5500
Attorneys for the Defendant,
Charles P. Ewing,

170 Franklin Street, Sulte 1501F 14202


il6-S5"3-5544

00 0 Uc
()'1)
.. 1...f
Case 17-38, Document 30, 02/17/2017, 1975447, Page54 of 158

[ 17
r
l'. r

[ 11 A. Jeff's reappointment and promotion to clinical


2 professor.
[ 3 Q. Okay. Was there anything else discussed at
4 that meeting?
[ 5. A. There was a lot of discussion about the

r:
[:j
6 Research and Writing Program, but basically
7 what we were discussing was the -- was the
appointment and promotion of Jeff.
E 8
9 Q. Okay. And was there a vote at the meeting
[ 10 about Jeff's promotion?

! .
11 1L Yes.

L 12 Q. Okay. And do you remember what the vote --

r
L
13
141 A.
the outcome of that vote was?
The <n.:itco:me was that he was appointed you
15 know, to the -- reappointed recommendation for
[
16 reappointment to full clinical professor,

[' 17
18 The following was marked far identification:
r
L 19 Exhibit 1 Bates stamp JM2800-2802
20
[ 21 BY MR. ARSEIT:

[ 221 Q. Professor Mangold, please tak:e a look at


?':l Exhibit 1.
--1
[ ~~\
A. Yes,

r.
~;:} Q. If you just flip through the three pages.
I
.I
i
L

r
L,
14202
r--
L,
Case 17-38, Document 30, 02/17/2017, 1975447, Page55 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page225 of 487

[ 18

[ r--------su,aan v. Mangold - By M:. Adleit - 11/20/13

[ l Xt's Bate stamped JM2BOO though 2802. Do you


2 recognize this document?
[ 3 A. Yes.
4. Q. could you tell me what it is?
[ 5 A. This is a document that was in my files. So,
6 when I received your request for documents, I
B 7 looked to the file that I had, the hard copy

c 8
9
file that I had kept, and this was in the
file. And I believe it's my -- my own

[ 10 personal notes from the meeting on the 28th.


11 Q. Okay. And could you tell me this: Just this

r 12
13
list of names on the left-hand aide, can you
tell me what that list means, if you know?
f"
.__ 14 A. 'This? Yeah. So, again, if -- what I would
15 have usually done -- I don't remember making
[
16 this list, but what I usually do is write down
[ 17 who's present at a meeting:. So I assume that

18 that's who was present on ,the meeting on the I


[ l9 28th. il
I
20 Q. Okay. And to the right of it, there's -- it
[ 21 says some N -- 9Y, 7N, 3AB. Can you tell me I
[ 22
23 A.
what that means?
That's a vote,
l!

[ 24 Q. Okay. And do you know what that vote is on?


25 A We talked about a few different things at this
[
[ ----DEPAOLO-CROSBY REPORTING SERVICES, I N C . - - - -

c 170 Franklin Stxeet, Suite 601, Buffalo, New Yoxk


116-853-5544
14202
\
. . . . . . . . L......
I
Case 17-38, Document 30, 02/17/2017, 1975447, Page56 of 158

Document

68

i
I

[ 1 through the American Association of Law


2 Schools and I accepted a tenure-track position

[ 3 at the University of Buffalo.


4 Q. o~ay; And th6t was, you joined in 1 95, and
[ 5 your three-year -- your grant ran three years.
6 so that would be '98?
7 A. No. So I ~- the grant bega~ in '93. And
8 during the term of the three-year grant, I
9 applied for a tenure-track position.
r 10 Q. Okay. Yeah, you testified you joined the
L
11\ faculty in '95?
[ 12 A. On a tenure-track position.
13 Q. Qkay. And then in '02 you were promoted to
r
L 14 well, I -- my notes a~e unclear. What were
15 you promoted to in 2002?
[ 16 A. I believe in 2002 was when I got tenure and I

L 17
18 Q.
was promoted to full professor.
Okay. And you were Vice-Dean of Academics
[ 19 from 1 04 ta '07. And then after that you
20 returned to your position as full-tenured
[ 21 professor?
22 A. Yeah. As I was trying to ezplain~ I was
[ I always a full-tenured professor. And then for

::1
251
those three years, I waa additional

170 Franklin Street, Suite 601, Buffalo, New York H202


[ 716-853-554 4
Case 17-38, Document 30, 02/17/2017, 1975447, Page57 of 158

487

[
114

[ 1
, , . . . _ - - - - - iwlltm V. Msmgold - By- M:f:, Sl<aiqht- ll/20/13

continuation of the notes that you started on


.
1
2 the previous page? 1

[ 3 A. Yes, Working with new faculty takes


4 considerable energy and is done by need and
request, of two new this year. One takes
considerable time, at times, two meetings a
week with Jeff and two meetings with three --
the three of us.
Of the four continuing teaching, two to

[ considerable -- considerable supervision, Jeff


dealt with several issues with a third, ail
well and something.

r
L
Q. Okay. Page 2800, I think it was your
testimony that this ~~ these are your notes of
f' the meeting on 4/28/06; is that right?
L 16 A. As best r can tell, that's what -- that's what
[ 17
l
you know, again~ I don't have independent
18 recollection of having these documents. They
[ 19 were in this file and that's what -- that's
20 how I marked it.
[ 21 Q. Okay. And the number or the people listed
22 there are the attendees?
[
24 Q. Okay. Now, how many people on the -- or how
25 many peo e could attend thiar Hho could

L REPORTING
170 Franklin Street, Suite 601, Buffalo, New York 14202
7 :t 6-S53-554 4

nono)')'
vi v t;.,;:,,<l
Case 17-38, Document 30, 02/17/2017, 1975447, Page58 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page228 of 487

[
115
[ .--------au....... V. Mlulg'old - Sy MJ:o, Sle.i.pt- 11/20/13

[ l attend these meetings, the P & T meetings?


2 All faculty members?
[ 3 A. P & T meetings woul~ just be the tenured
4 faculty.
[ 5 Q. Okay. And can you tell me how many or what
6 percentage of the tenured faculty was at this
G 7 meeting?
e
E 9
A. No, I don't know.
Q. Was there a -- some kind of -- you told us
[ 10 you have testified before about dis~ussion

11 about quorum?
L. 12 A. Subsequent.
Q. Afterwards?
r
L ..
13
14 A. That's the best of my recollection.
15 Did you say that was in the context of some
[ Q,
16 objections that Jim Gardner had raised?
[ 17 A. That's the best of my recollection, yes.
18 Q. And can you remember what those objections
c 19 were, what specifically
the quorum, the issue of quorum?
h~ was objecting about

c
20
21 ~. He was questioning, to best of my
22 recollection, he was questioninq about the
[
23 quorum, whether there was a quorum.

r 24
25
Q. Do you recall there ever being a resolution of
that issue?
[
L '------DBPAOLO-CROSBY .REPORTING SERVICl!:S, !NO.
170 Franklin Street, Suite 601, Buffalo, New York
__J
14202
[ 116-853-5544

00002t;.J
Case 17-38, Document 30, 02/17/2017, 1975447, Page59 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page229 of 487

caceJ-~.i'2~ce~~t1ti~~ B88~m1WSh'3-4' 1~-\!MaWH'~~ 4P:i~9.ri 5& ti~ 122

Exhibit
F

0000232
r
Case 17-38, Document 30, 02/17/2017, 1975447, Page60 of 158

r~
b 1

1 UNITED STATE DISTRICT COURT


2 WESTERN DISTRICT OF ~EW orRBW YORK
3
4 J:ll'!'l.X? MAI.KU,

5 J?laintiff,
6 -against- 12-CV--0236
r
b 7 MA.ltAO W. MU!UA.and Cha~la I. mfl~G in tbei~
individual eapaciti,
a
c 9
Deferidi:'l.nts.
--------------------------------------~------
Examination Before Trial of ROBER~ J.
[ 10
S'!ZIHftL, held before Heather Marcolini,
11 Notary Public, at The Avant Building, 200
Delaware Avenue, Buffalo 1 New York, on
f' 12
13
November 211 2013 at 2~05 PM, pursuant to
notice.
APPEARANCES: ~RBDS BR01nlf.LAW, P,C. 1
141 Bx: aa'iu un:w:~, IHQ. ,
one Old Country Road Suite 347
15 Carle Place, New York 11514
[ 16
(516) 873":"9550.
Attorneys fortha Plaintiff
17 S'l'A~m 0'1' HD YO.RI: Ol!'FICm Oli' !SB
[ 18
A!'.l!OlU.t'E!' GBH'lUlAL
lll't:l:C !r. SC:BWJ::tl)BlUQ'H,
.JS'f: DAV:tD J. SLZ:tli'll'f, :ISQ. ,
[ 19 G&RERAL
ASl?SfAJl~A~~OrulBY
Main l?lace Tower
20 350 Main Street, Suite 300A
Buffalo, New York 14202
D 21 (7lt5) 852-6274
Attorneys for the Defendant,
22 Makau 'ilL Mutua,
r
L 231
24 APPEARANCES CONTINUED.,.
[ 25

[
....~/
'-----~DEPAOI.0.cROSBY :REPORTING o:> .,,,.,,,.,....Nlll'., INC,-----
170 Franklin Street, Stlite 601, 14202
716-853-5544
[

0000233
Case 17-38, Document 30, 02/17/2017, 1975447, Page61 of 158

17-38, Document 22, 02/01/2017, 1961823, Page231of487

[ 9

r__ .---------MR, 8DIN1".II.D - BY ta. ARmlt!I! - 11/21/13 - - - - - - - - .

r- 1

2
3
that meeting for'his promotion to full
professor?
A. Sure. I remember that it was a long
[ 4 contentious meeting, there .were s~rong

[ 5 opponents of his promotion. Went on for a


6 long time and the way I reoo1lect things,
[ 7 after a certain amount of time had gone by and
8 there was a confusion in the meeting having to
c 9 do with the research and writing program
10 versus. Professor Malkan's promotion and at a
[ 1".1 certain point I believ.e it was I who made a
12 motion to separate the two decisions. That
L 13 is, one vote on for promotion and tenure and
r-
L-
14 another vote on what to do about the structure
:i5 of legal research and writing. What I
c .16
17
remember about that is that the vote
was ~vote in favor of Professor Malkan's
there

[ 18 promotion to clinical professor. It was a


19 clos~ vote I remember. It was by one or two
[
20 votes, And when it came to decidinq upon what

[ 21 was to be done about the research and writing


22 program, the P&T committee voted to study it
[ 23 and let it 90 on for another year and then in
24 a year come back and consider what was to be
[ 25 done about the research and writing program.

[
.r=
L- ------DEPAOLO.CROSBY REPORTING SERVICES, INC.---.,.---
170 Franklin Street, Suite 601, Buffalo, New York 14202

c 71!5-853-5544

0000234.
Case 17-38, Document 30, 02/17/2017, 1975447, Page62 of 158

Exhibit
G
Case 17-38, Document 30, 02/17/2017, 1975447, Page63 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page233 of 487

r
c
l

r. 1
2
UJUTED STATES DISTR~CT

WESTERN OISTRICT OF NEW YORK


COURT

r~ 3
---------------------------------------------
r 4 JlH'l'UY BLltA'll1 , .
L 5 Plain\;iff,

(J 6 -vs- Index No. 12-CV-0236


7 MJ\KAO W. K'O~OA and CBAltLZS . BWXBQ, in their
in.di'V'id.ual cag.ao.t.ti
~ a
Defendants.
9
[ 10 Examination Before Trial of RBBBCCA
11 aBNCa-amDWOOD, held before Lindsay N. Truman,
L 12 Notary Public, at J>AKOlr MOJUIY, Avant Building,

r
'-
13
1(
200 Delaware Avenue, Suite 1200, auffalo, New
York, onNovember 20th, 2013 at 4~55 p.m.,

[ 15 pursuant to notice.
16
APPEARANCES; X.BllDS BllOD LAW, P. C. r
[ 17 Bl': Bll"!Alt ARBBl~, ESQ.,
One Old Country Road, Suite 347
18 Carle.Place, New York 11514
[ 19
(516.) 873-9550
~ttorneys for the J?laint.iff.

: 20 l>AH011f HOUY
0 21-
BY; ABZQAIL KOZA.RA,
Avant Building, .
200 Delaware Avenue, Suite 1200
so.,

c 22
23
Buffalo, New York 14202
( 71'6) 856-5500
Attorneys for the Defendant,
Charles P. Ewing.
[ 24
25
[
[ ----DEPAOLOOROSBY REPORTING SERVICES, INC.---"--'
no. Franklin Street, Suite 601, Buffalo, New York 14202
[ 716-853-5544
Case 17-38, Document 30, 02/17/2017, 1975447, Page64 of 158

Document 487

Cas..e 1:12-c.v-00236-MAT-HKS. Document 63-5 f7iled 08/30/14 Page 60 of 122


case r:12-cv-00236-RJA-HKS Document 59-4 Filed 08/13/14 Page 37 of 99

[
6

~a hliil:lch'"'~od ~ !iy Mr.

[ l lkan?
2 s.
[ 3 Q. What do you :remember of that meeting?
4 A. rt was on a Friday, late in ApriL ! t was on
[ 5 a ~riday afternoon and we met in the
6 courtroom, which was unusual; I do remember
7 that, The topic of hia tenure as a clinical
8 professor was br6ught up and we voted on it.
9 Q, Okay. Do you remember what the outcome of
10 . that vote was?
11 A. Yes. It was not unanimous, as r recall, but
L 12 it was a majority or a significant percentage

r
"-
13
Q.
was pro, granting Professor Malkan tenure.
Do you remember if any other topics were ~-

[ 15 A. I was just trying to think about that the


16 other day and I dont unfortunately. I do
[ .}'] know that afterwards I was aiiher approached
18, or I sugvested that I woul hdlp in putting
[ 19 together any programs that were needed, if

c 20
21
there were such things for le
writing, you know, if Jeff or anyone else
.research and

22 wanted help on the subject matter,


[
23 Q. Do you reaember why yo~ did that?
24 A. ~by I did that?
25 Q. Yes

.......,-----DJ!!il"llULU OJROE'13YREPOR'l11.-i\Tfj _.__i

170 Franklin Street, Suite 601, Buffalo, New York l4202


[ 7U-S53-5544

00002.3/
Case 17-38, Document 30, 02/17/2017, 1975447, Page65 of 158

Exhibit
H

00002Jd
Case 17-38, Document 30, 02/17/2017, 1975447, Page66 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page236 of 487

L' cae;iJ~:i2~Sm~~~~ Bgglim:~t~t Fl!Ma%W~J 4pa'Q~9.f96aig~ 122

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


DIANNE AVERY

v.
12-CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
iodividual capacities,

Defendants.

DIANNE AVERY, pursuant to-28 U.S.C 1746 and under penalty of perjury,

declares and states:

1. On April 28, 2006, I was a tenured professor of le;w at the University at Buffalo

Law School, The State Universicy- ofNew York.

2. As such.; I was a member of the Law School's Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of ~ Committee on Clinical Promotion

and Renewal, at the Law School.

4. At that meeting, the Committee discussed the promotion of Jeffi:ey Mallcan from

Clinical Associate Professor to Clinical Professor.

S. Following the discussion, the Committee voted by secret ballot at that meeting to

recommend that Jeffrey Malkan be promo1ed to Clinical Professor.

6. I took cont~poraneous notes at the April 28, 20-06, meetinQ of the Committee on

Clinical Promotion and Renewal.

OOOOlJ~;
Case 17-38, Document 30, 02/17/2017, 1975447, Page67 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page237 of 487

7. I recall, and my contemporaneous notes reflect, that Professor William Greiner, was

not in attel1dance at that meeting.

~
VERY DIANNE A

Dated~ Buffalo, New York


July ..8..1_, 2014

OOOOli.!V
Case 17-38, Document 30, 02/17/2017, 1975447, Page68 of 158

UNITED STATES DISTRICT COURT


WESTER.llol DISTRICT OF NEW YORK

JEFFREY MALKAN, DECLARATION OF


REBECCA FRENCH

v.

MAKAU W. MUTUA and


CHARLES P. EWING mtheir
mWVidmtl caJJ!tdtiei

REBECCA FRENCH, pursuant to 28 U.S.C 1746 and under penalty of perjury,

. ,. ,. . . ,,

Law School, The State University of New York.

2, Al!. such. I was a member of the Law School'~ Committee on Clinical Promotion

and Renewal.

".
3. On April 28, 2006, I attended a meeting of the Committee on Clinicsl Proml.ltion
an~'~Wal ~~:~School: ;;c''' . . . .

4. At that meeting, the Committee di!lCussed the promotion of Jeffrey Ma1katl from

Clinical Associate Professor to CJinka1 Professor.

. 5. Following the discussion. the Committee voted by secret ballot at that meeting to
\ ".J

reccllD.miena that 1emey Ma1bn be ~ote:d to clli:dca1 .Professor.

0000241
Case 17-38, Document 30, 02/17/2017, 1975447, Page69 of 158

17-38, Document 22, 02/01/2017, 1961823, Page239 of 487

Dated: Buffalo, New York


JulyJl.L2014

)-~\ '"."'' : : -~:., -~~.. ~ : .


. :.

0000242i
Case 17-38, Document 30, 02/17/2017, 1975447, Page70 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page240 of 487

UN:q'ED STATES DISWCT COURT


WESTERN DISTRICT OF NEW YORK

DECLARATION OF
SRUBBA GH~H
. Plaintiff,

v.
MAKAU W. MUTUA anti
CllAllLES P. EWING in their
individual capadtles,

SHUBHA GHOSlI. pursuant t.o 28 U.S.C 1746 and under penalty of perjury. declares

and states to the best of his memory:

1. On April 28, 2006, I was a tenured professor of Jaw at the University at Buffitlo Law

School, The State University of New York.


2. As such. I was a member of the Law School's Committee on Clinical Pronl~tion

and Renewal.

3. On April 28, 2006, I.~ a meeting of the Committee on Clinical Promotion and

Renewal at the Law School

4. At that meeting. the Committee discussed the promotion Qf Jeffrey M.aibn from Clinical

Associate Professor to Qinical Professor.

0000243
Case 17-38, Document 30, 02/17/2017, 1975447, Page71 of 158

Case 17-38, Document 02/01/2017, 1961823, Page241of487

Cas.e 1:12-cv-0000
236-MAJTA-HHKS Document 63-5 F.;_i!E!.d 08/30/14 Page 6of7 of 122
.f
case 1:12-cv- 2~36-R - !KS Document 59-4 Fhcu 08/13f14 Page 44 99

5. Following the discussion, the Committee voted by secret ballot at that meeting to

recommend that Jeffi'ey Malkan be promoted to Clinical Professor.

SHUBB'.A GHOsH
Dated: Dallas, Texas
July 27. 2014

OOOQ244
Case 17-38, Document 30, 02/17/2017, 1975447, Page72 of 158

..

UNITED srATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKANt DECLARATION OF


ALFRED KONEFSKY

v.
12-CV~0236(A)
t...fAKAU W. MUTUA and
CHARLES P. EWING In their
im:Hvldual capacities1

ALFRED KONEFSKY, pursuant to 28 U.S.C 1746 and under penalty of

perjuey, declares and states:

1, On April 28, 2006, I was a tenured professor of law at the University at Buffalo

Law School, The State University of New York

2. As such, I was a member of the Law School's Committee on Clinical. Promotion

and Renewal:

3. On April 28, 2006, I attended a meeting of the Committee on Clinical Promotion

a.rufRenewal 'at the Law SchooL

4. At that meeting, the Committee discussed the promotion of Jeffrey Malkan from

Clinical Associate Profc:ssor to Clinical Professor.

S. Following the discurui!on, the Committee voted by seci:et ballot at that meeting to

recommend thatJeffrey Malkan be promoted to Clinical. Professor.


Case 17-38, Document 30, 02/17/2017, 1975447, Page73 of 158

487

.~~/~_&.
ALFRED KONE,SK.Y ) - -

Dated: Buffalo, New Yo.rk


July .ll._, 2014

0000240
Case 17-38, Document 30, 02/17/2017, 1975447, Page74 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page244 of 487

UNITED STATES DISTRICT COURT


WESTERN DISTRICT 011' NEW YORK

DECLARATION OF
SUSAN MANGOLD
Plaintiff,

v.
MAKAUW. MUTUA and
CHARLES P. EWING in their
mdividual eapaeitles,

SUSAN MANGOLDt pursuant to 28 U.S.C 1746 and under penalty of perjury, declares

and states:

School; T'ne State University of New Yo:tk.

2. As such, I was a member of 1he Law School's Committee on Clinical Promotion

and Renewal.

3. pn April 28, 2006, I attended a meeting of the Committiee on Clinical Promotion and

Ren~ at the U\w School. As Vice Dean for Academic Affairs, I clliliied the meeting in the

Dean's absence.

4. At that meeting. the Connnutee discussed the promotion of Jeffrey Malbn from Clinical

Associate Professor to Clinical Professor'.

5. Following the discussion, the Committee voted by seem ballot at that meeting to

rec0mniend that Jeffrey~ be promoted to Clinical Professor.

00002.4(
Case 17-38, Document 30, 02/17/2017, 1975447, Page75 of 158

6. Follov..::illg the April 28, 2006 meeting in which the Committee voted, to recommend that

. Jeffrey Malkan be promoted to Clinical Professor, Professor James Gardner~ me and

questioned the way in which abstentions should be counted with regard to the vote to renew~

promote Professor Malklm. After some ~on, Professor Gardner accepted that the vote to

renew and promo~ Professor M~ was valid.

Dated: Great Barrington, MA


July .s1L 2014

0000 ()
Case 17-38, Document 30, 02/17/2017, 1975447, Page76 of 158

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

DFCLARATION OF
ISABEL MARCUS

v.
12-CV.023(i(A)
MAK.AU W. MUfUA and
CHARLES P. EWlNG mtheir
mdividmll capacities,

ISABEL MARCUS, pUJ:S'U8l'.it to 28 U.S.C 1746 ll.lld under penalty of perjury, declares

and states:

I. On April 28, 2006, I WM a ten.tired professor of law l1il the University at Buffalo Law

School~ The State University vf:t-{ew YorL

2. As such, I was amernberoftheLaw School'sCommitteeon Clinical Promotion

3. On April 28, 2006, l attended a meeting of the Committee on Clinical Promotion and

Renewal at the Law School.

4. At that meeting. the Committee discussed the promotion of Jeffrey Malkan from Clinical

Associate Professor to Qinica! Professor.

5. Following the disoossio:n, the Commi.ttee voted by secret ba!l(Jt at that meeting to

OOOOZ4J
Case 17-38, Document 30, 02/17/2017, 1975447, Page77 of 158

Dated: Buffalo, New York


2014

2
Case 17-38, Document 30, 02/17/2017, 1975447, Page78 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page248 of 487

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MAL.KAN; DECLARATION OF

Plaintiff, LYNN MATHER


v.
12-CV..0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
in.dividual capacities,
:'
....... _ .

Defendants.

LYNN MATHER. pursuant to 28 U.S.C 1746 and under penalty of perjury, declares

and states:

l. On April 28, 2006,. I. 'W8S .a tenured


.. prof~r
..
of law
. .
.at the. V~iyersity
. .'
at Buffalo Law

School, The State Univ~rsity of New York. .

2. As such, I was a member of the Law School's Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, l was unable to attend a meeting of the Committee on Clinical

" ... "'Prmri0t1<friendlt~irtlieti\V"~f'ie~1be pfofriotl.'t>1fbtf' Jijf~ t6Cltni~f' "'"'


Full Professor because that day was the last session of my seminar, Law 725, "Law & Society:

Interdisciplinai:y Research on L11w and Legal Institutions" in which studenis were presenting

their draft research papers to the class for comment and feedback.

4. As soon as my clas.s was over (in 406 0.'.~rian).. I stopped at my offic.e ~then went up the

back stairs to see if the faculty meeting was still in progress on the .5th floor. In the stairwell I ran

0000251
Case 17-38, Document 30, 02/17/2017, 1975447, Page79 of 158

into my colleague Professor Jim Gardner as he was coming dov.'n the stairs at the conclusion of

the meeting. I clearly re.call my conversation with Jim a.bout the meeting.

5. Jim had been against the promotion of Malkm and had circulated a detailed and forceflli

letter of opposition just a day or two before the meeting. Jim's letter had surprised me since I

thought that everyone was in favor of Jeff. In the stairwell when I asked Jim v.ihat had happened

at the meeting, he was upset. He told me that the Committee had voted to promote Jeff. He

reported that he and ~ofessor Lucinda Finley thought this was a mistilre b1:).t they were outvoted.

majority of the faculty sUpported Jeff Malkan and voted for his promotion at the meeting.

Dated: Newbiuy, MA
July 28, 2014

2
Case 17-38, Document 30, 02/17/2017, 1975447, Page80 of 158

UNITED STATES DISTRICT COURT


\VESTERNDISTRICT OF NEW YORK

JEFFREY MALKA.Ni DECLARATION OF


ROBERT STEINFELD

v.
MAKAU W. MUTUA and
CHARLES P. E\\IJNG in theh;-
imiividtull capacities,

ROBERT STEINFELD, pursuant t.o 28 U.S~C 1746 aDd under penalty of

perjury, declares and stat.es:

1. On April 28, 2006, I was a tenured professor of law a.t the University at Buffalo

Law School, The State University ofNew York.

2. .As such, I was a member of the Law School's Committee on Clinical Promotion

and Renewal.

3. On April 28, 2006, I attended a meeting of the Committee on Clinical ;Promcition

and Renewal at the Law School.

4: At that titJnng, th~ commin; dfscusked ~'~motion of Jeffrey Malkan fro~


Clinical Associate Professor to Clinical Professor.

5. FclfovJing t11e discussion, the Commit<.ee voted secret ballot at that meeting to

rec;:nni:ner:tct that Jeffrey Malk:an be promoted to Clinical Professor.


Case 17-38, Document 30, 02/17/2017, 1975447, Page81 of 158

17-38, Document 22, 02/01/2017, 1961823, Page251of487

Dat.ed: teensboro, Vermont


July~2014

. :_, ; '' ' ' ' 1(.. ... .; ~ . -.~. ..

0000254
Case 17-38, Document 30, 02/17/2017, 1975447, Page82 of 158

Document 487

Exhibit
I

0000255
Case 17-38, Document 30, 02/17/2017, 1975447, Page83 of 158

Document

1
I

i. I.
l UNITED STATES DISTRICT COURT
2 WESTERN DISTRICT OF NEW YORK
3
------~--------------------~---------------------
l. 4
5
6 Plaintiff,
7 -vs- FILE NO. 12-CV-0236
a }fi_ill{AO w. MOTOA and CHARLES. ,p. mwn1G' in their
individual capacities,
t,,

Defend.ants.

12 Examination before trial of KIUQUi w. ~. held


13 before Kelly s. Hairston, Notary Public, at ~ MO~l!!Jt',

r
I
14 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
l
151
16 pursuant to notice.
17 LilJWS D.<l\IR u.if / p C I
BY: muA'Jit ADlltI~, ESQ. ,
18 One Old Country Road, Suite 347,
Carle l?lace, New York 11514,
19 eh. (716) 873-9550, .
Attorney for the Plaintiff.
20
~ & HOU!', P.C.,
21 BY: ~H C, Oi'~IM'JilR, B~. ,
iI Avant Build:lnq,
~~ c
22 200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Ph. (?Hi) 856-5500,
Attorney for the Defendant,

I
24 Charles P. Ewing.
25

I>ei'AOLO.. CROA'! JU!U1i10R'l'DtG S~CBS, I:~,


170 Franklin 601 New York 14202
44
Case 17-38, Document 30, 02/17/2017, 1975447, Page84 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page254 of 487

)'
\,
M. MOTTJ'A -- BY MR. ARBEIT -- 12/19/2013 36
r-
L
1 Q. Let me ask, was there anything positive?
[ 2 A. No.

,-. 3 Q. Nor
I
j ... 4 A. No, there really wasn it ..
:,._.._
;
5 Q. By anybody?
'\, ~
6 A. No, there really wasn't. It was a very heated :meeting,
,-
I.

I
7 but I think people, you know, I should say that you
\.
a know, people were concerned that the proqram was not
;-
i<.. .. 9 doing what it should have done for our students, that
10 was the overwhelming concern of the faculty members. I
r 11 think that, you know -- and people felt th~t Jeff
L
r-L,_ 12 should be removed from that position so that we could
\
I 13 ;find someone who could, you know, lead a goOd program
,.. 14 for our students.
l 15 Q, So then I guess What happe..ned at the meeting after, r.
16 guess, this heated discussion?
\'
17 A. So the discussion contined and at some point, I think
r- 18 people began to feel that although we felt that Jeff
L.
19 should be removed, that we should not simply throw him
,,. ...
I out onto the street inmediately, that we should give
20
L..
21 him a year, a terminal year and then instruct o~ ask
[: 22 the Dean to form a faculty committee to study the
,. 23 proqram and come back with J:ecommendations of how the
I
l, ... 24 proqram could be recreated.
r 25 Q. Let me ask, I mean, the committee couldn't throw him
I
\
L
r
\
f

f' ~

l
L. ~
DePAOLO-OO$BY u~xm BERVl'CZS, me.
170 Franklin Street, Suite 601, Buffalo, New York 14202
'''' \
?16~853-5544

000025'7
Case 17-38, Document 30, 02/17/2017, 1975447, Page85 of 158

17-38, Document 02/01/2017, 1961823, Page255 of 487

.r'"
I
''
M. Mti'l'UA -- BY MR. ARBEIT -- 12/19/2013 37
('"
{
i..
1 out in the stJ:eet, I think, even if they wanted to,
l ..
\
2 could they~

\
3 A. You mean the faculty meeting?
l
\' 4 Q. The faculty meeting.
r 5 A. 'l'he fa'culty was going to recomll\encl to the Dean that he
l 6 give Mr. Malkan a terminal one year appointment and .
,.--
i 7 then establish a committee to study the program and
L
8 make recommendations.for change.
,.....
i' 9 Q. But I'm a .little confused because I thought that the
l. ..
10 appointment -- you said that the appointment fo~ a
-- 11 Director position was at-will for the Dean?
'
12 A. Yes. This does not mean that the faculty cannot
f"
l. 13 e~ress their view to the Dean andW~ eXJ;>ressed our
r 14 view.to the Dean very strongly on this one.
I 15 Q. so your view was to have him stay on for a .full year?
(""
l
16 A. Yes, as -- baaically as a caretaker of the program
\ ..
17 while we also look for another Director and he look for
( ...
~ ; 18 another job elsewhere.
l...
19 Q. And was -- this was voted on?
r ..
{
I
20 A. It was voted on.
21 Q, Okay. Was this communicated to the Dean?
c-
L. 22 A. I don't know.
23 Q. Okay.
'j 24 A. We asked the current Dean, then Sue Mangold, to
I .. 25 communicate our resolution to the Dean.
'-
r

r-
}
\.t ~
Deno:r.oCBOSB!' DPOR'!DG SDVICBS, l:HC.
170 Franklin Street, Suite 601, Buffalo, New York 14202
716-853-5544

000025$
Case 17-38, Document 30, 02/17/2017, 1975447, Page86 of 158

Document 487

ri

M. MOTUA -- BY MR. ARBEIT -- 12/19/2013 39

1 A. Someone did make a motion for us to vote on whether we


2 should give Jeff -- Mr. Malkan a terminal year.
3 Who was that?
4 A. I cantt recall who it was.
5 Q. Do you know if somebody had to second that motion?
6 A. Yes.
7 Q. And do you remember who that was?
8 A. I can't recall, but we did vote.
t'
; 9 Q. You did vote?
:
\. ..

10 A. Yeah.

11 Q. All right, and do you remember the outcome of that


12 vote?
r
L. 13 A. Yeah, it was very close. Like I said, it was something
14 like 6 to 5 wi.th maybe two abstentions. I can t
15 recall, something like that. Because I remember
('"'.
I
16 someone asking whether a 6 to 5 vote with two
17 abstentions was an affirmative vote.
18 Q. was an affiX'lllauive vote?
19 A. Yeah.
20 Q. To have him })e:able to stay?
21 A. To stay.
22 Q, Do you remember who that was?
23 A. I can't recall who it was, but I remember the person
24 who answered the question was the for.mer President Bill
25

DePAOLO-CROSBY UPOR'l!ING SDVICBS, :tNC.


170 Franklin Street, Suite Buffalo, New 14202
716-85 H
Case 17-38, Document 30, 02/17/2017, 1975447, Page87 of 158

487

M. MUTUA -- BY MR. ARBE!~ -- 12/19/2013 40

11 one was really convinced that it was. The meeting then


2 just broke down at that point and people left.
3 Q. So let me understand, so somebody was challenging
whether or not it was an affixmative vote to keep Jeff
r~

i
for another year?
l. A. Yes.
Q, Because people were so dissatisfied about how
8 A, Yes, yes1 and then Mr. Greiner say -- Professo:r Greiner
r~ ...
l 9 say that yes, it's an affirmative vote. I think there
L
10 was a desire by people to keep him for a year, let me
l .
11 put it that way.
12 Q. And do you remember if this person that was contesting
13 or challenging the voter was that Professor Gardner?
r
'
A. I think many people would challenge the vote. r think
I 15
\,,
many people said is thi~ an affirmative vote? I think
16 it was not just -- I can't recall who it was, but I
17 remE.mlber it was a ch-0rus of objections as to whether
16 this was an affir:mativ~ vote.
19 Q, And this happened at the meeting itself?
20 A. Yes, yes.
21 Q, Okay.
22 A. Immediately after the vote was announced, people --
23 there was a chorus of whether this was a yes or a no
24 vote.
Q, Do you rem.ember what, I queaa, the person presiding

~J?AOLO-CltOSB!' MPOB.~IHG SDVICES, DtC


1 70 Franklin Street; Suite 601, New York
716~(153-554 d.

OlHl021i0
Case 17-38, Document 30, 02/17/2017, 1975447, Page88 of 158

Document 487

M, MOTUA -- BY MR. ARBEIT 12/19/2013 43

'..
1 aoout.
\_ 2 Q, Okay.

3 A. Yeah. There was only one vote, which was to extend him
4 for another year as Director of the program.
5 Q. And you remember this clearly?
~ ..
6 A. I remember this very clearly.
7 Q. H~ve you had a chance to discuss this meeting with
L
8 anybody?
i
i
j_
9 A. I mean, I d~soussed the meeting with my lawyers before
10 the Labor Court in Albany when ~ testified there.
11 Q. Okay. What about anybody at the law school?
12 MR, OPPENHEIMER: B'o:nn.
13
14 BY MR. AR.BUT:
L..
15 Q. Did you discuss the meeting and what occurred at the
,-
! 16 meeting after with anybody at the law school?
L ..
17 A, Probably.; I mean, you know, it waa .such a contentious
18 meeting, iprobably people talked about it for daysi I
19 can 1 t imagine that peopie didn 1 t,
!
1
\ <
20 Q. And let me ask you, did you diaou&a with them the vote
21 or the outcome?
22 A. No, because I think, I think that we felt that we had
23 done the humane thing which was to give Mr. Malkan an
24 additional year. So that issue was settled. And I
think people felt, you know, that was the appropriate

r
i
t,
DePADLO-CROSBY u~::ntG snv:tas, me.
170 Frankl.i.ri, Street, 601, Buffalo~ New York 14202
716-953-!!SU

0000261
Case 17-38, Document 30, 02/17/2017, 1975447, Page89 of 158

487

Exhibit
J

0000Zb2
Case 17-38, Document 30, 02/17/2017, 1975447, Page90 of 158

17-38, Document 22, 02/01/2017, 1961823, Page260 of 487

ca~ih!'~JA~ ftiOe"~RE ~i ifitifr.Po~~/l 4 pf~~@~b 122

VOLUME 3.
STAT! or NEW YOrti
PUBLIC EMPLOYMENf RELATIOWS BOARD
.t
* * * * * * ** *** * ** * * * *
I In the Matte~ of: **
**
I
~
UNITED UNIVE!tSI~Y Jnl.O.FESSIOKS 1 NEW
YORK STAT~ U~fED rEACHERS, APT,
LOCAL 2190, APt-CIO,
*
*.
Charqj.nq Party, "' .Case No
.. U-28926
-and-
*
snn or NH tQU Estate
*t
tJ.nJ.ver;sity of New York at "'
Bll.f'falo) r *
Respo.ndent. *"
"******"'*****"ti""****
Pu.bli9 Employmant l'lelations Board
!fain Rearing Room
&'it.th Jlp6J:
BO wolf Road
.A.lbany, liew '!tork 12205
~pdl l, 2010

~he above-entitled metter came on for hearing


'at 9:4-5 a.m. 1 p1.1,uua.nt to Not.ice.

aeore: KEHN&TE S, CARLSON, ESQ.


Admi.nistz:a.t.ive Law Ju.dge

DBU ll. 0%.801' - COV'lt.'r UPOana - ('71$) '741-92.55 .


Case 17-38, Document 30, 02/17/2017, 1975447, Page91 of 158

Case Document 02/01/2017, 1961823, Page261 of 487


c~tise!~~~:f\~ ~~s Fff~~8)1!i~414PRQ@~lb19 122

fMutua, CrolUi)
l A As far u I was concerned, Jeff never hatt a
2 clinical appqintment,
3 Q ~nd is it yo'.Q.z: te.stJ.mo:ny that there was no vot.e
I
4 held on hie promotion at that me~ti~q?

I
5 A Promotion for what~

! 6 Q E'rb.m cli1lical 1usociat.e to fuJ.l professor.


7 A My underatandinq is that we did not act on that
B particular item.
9 O There waa n() vot19?
10 A 1'hera waa no vote on th'-'t par.tieu1a:c- issue.
11 o On tbe promotion isaue?
12 A Yes.

1!t Q So as far as you knew,. afte~ that meetinq he


14 \llaBll 't qainq to he promoted be_oa.usa nobody h-ad

v:otad on it?
l
15
16
17
A
Q
That' 9 coz;re-ct.
And it had t4 be voted on by the 00111111ittee? I
1..8 A ! t had to be voted on by the Coli.mi tt.ee.
19 Q And did the collUllittee hold a dLtfer&~t meetinq
zo where they held t~~t vote1
21 A Repeat the queet~on.

22 Q Did the .c9inl:lliitee hold a separate meUng,

23 reconvene to hold a vote on his promotion?


2-4 A NO, they di ti not. l
I
II i
I

JM 00285l
I
Case 17-38, Document 30, 02/17/2017, 1975447, Page92 of 158

487

Exhibit
K

OOOOZ6fi
Case 17-38, Document 30, 02/17/2017, 1975447, Page93 of 158

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF NEW YORK

JEFFREY MALKAN,
DECLARATION OF
CHARLES P. EWING

v.
12CV-0236(A)
MAKAU W. MUTUA and
CHARLES P. EWING in their
individual capaelties,

Defendants.

CHARLES P. EWJNG, pursuant to 28 U.S.C 1746 and under penalty of perjm:y,

declares and states:

I. I am a SUNY Distinguished Service Professor and Professcr of Law at the

SUNY Buffalo Law School. I have been a member of the faculty at the Law School for 31

years.

2. From June I, 2009 to June 1, 20~4 (in addition to teaching duties), I served as a

Vice Dean of the Law School. My service as Vice Dean began after the conduct took place

that Plaintiff Jeffrey Malkan ("Malkan") alleges violated his civil rights.

3. I was not involved in any manner in any decisions made regarding the Law

School's employment ofMalkan.

4. Makau Muma ("Muwa"), the Doon of the Law School, made (without my input)

the decision to fire Malkan from his position as Director of Legal Research and Writing and not

appointment as Clinical Professor.

000026ti
Case 17-38, Document 30, 02/17/2017, 1975447, Page94 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page264 of 487

Ca~i!~A~ ~ffi@~~ Ffii~J.t4pf~9122

5. After Mutua made his decision, and I learned about it, I spoke with Malkan as a

colleague and encouraged him to file a grievance with the Law School Grievance Committee,

which I then chaired.

6. According to Law School faculty bylaws, the Law School Grievance Committee

has very limited powers:

This Committee shall be cotnposed of three Faculty Members to be appointed


annually. Any Faculty Member who feels aggrieved by any matter relating to
his or her rights and privileges as a Faculty Member. including, but not limited
to, terms and conditions of his or her employment. may present a grievance to
the Committee. It shall be the duty of the Committee to investigate the
grievance promptly and in confidence and to endeavor to adjust it amie!tlbly. If
the grievance cann.Ot be adjusted, the Committee shall make its
recommendations which shall be appealable to the Executive Committee of the
Faculty Senate, as provided in the Bylaws of the Faculty Senate.

7. MaJkan took my advice and filed a grievance. Immediately upon receiving

Malkan's complaint, I shared it with and discussed it with the Grievance Committee.

8. I also approached Mutua. against whom the grievance was 1~ to investigate

the grievance, per our bylaws.

9. Mutua refused to discuss the grievance with me. a$serting he was doing so 011

the advice of counsel, because Malbn bad initiated litigation and was contemplating additional

litigation.

10. Because Mutua would not cooperate with the Committee's investigation and

talk with me, and because Mallcan had already initiated litigation outside the University, and

following applicable University regulations, the Committee determined that we could do

nothing further to "endeavor to adjust [the grievance] amicably'' under our bylaws. We

therefore decided to stay further action on Malkan's grievance complaint. This

00002Bi
Case 17-38, Document 30, 02/17/2017, 1975447, Page95 of 158

487

c~se:.1~%0~~~ ~:?.F1$5 Fff~o~fo.!~~4p~%f ~ 122

recommendation was unanimous. We further decided to ten Malkan what had transpired. I

fuen made that disclosure to him.

11. While my good faith efforts described above constitute the totality of my

involvement concerning Mutt.la's termination of Malkan's employment at the Law School,

Malkan has alleged with no basis that I "worked in conspiracy with Mutua to block iV!alkan's

access to a mandatory faculty grievance process, thus allowing [me] to become director of the

LRW soon after Malkan was fired" ari..d that I was subsequently "awarded" Malkan's former

position in which he supervised the Legal Research and Writing Program.

12. r never conspired with Mutua to deprive M.alkan of any rights. My only activity

regarding Malkan's employment was consistent with my role as Chair of the Cnievance

Committee. In that role I accepted Mallam's grievance complaint against Mutua. discussed it

with my fellow Committee members. tried to investigate it with Mutua, tried to amicably adjust

it, and discussed what the Committee's recommendation should be and what course of action it

should take since Mutua would not talk with me.

B. I was never "awarded" or in any way given Malkan's former position at the Law

School. On June 1, 2009, I was appointed by Mutua as Vice Dean. for Legal SklUs, an

executive position in which I oversaw . approximately 40 percent of the Law School's

curriculum. including inter alia all skills courses, moot courts, law review and other journals,

trial advocacy, externships, academic support services, and the legal analysis, writing and

research courses. Each of the areas I supervised as Vice f'JOO.n, including the legal analysis,

charged with the day-to-.day management of those programs. With regard to the legal analysis,

3
Case 17-38, Document 30, 02/17/2017, 1975447, Page96 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page266 of 487

Ca~~~l11ff<S ~y~~ Fffi~lll.4.4p~gg122

writing and research program. that day-to-day management function was the responsibility of

Professor"Johanna Oreskovic and later Professor Patrick Long.

14. After overseeing a three-year ovethaul of the legal skills programs at the Law

School, I was appointed Vice Dean for Academic Affairs in 2012. Mutua testified at his

deposition that: "[T]he previous Vice Dean for Academics, Proressor Gardner. went on

sabbatical and you cannot run a law school without a Vice Dean for Academics. So I had to

find someone and in my own estimation, there was no one in the law school that was better

qualified than Professor Ewing for Vice Dean for Academics."

15. My relationship with Mutua has always been limited to that of professional

colleagues. Any social events we attended together were Law School related. I have often been

openly and strongly critical of Mutua and his management of the Law School and have not

hesitated to share my criticism with him bluntly and personally. For example, several years

ago, when the faculty was about to vote "no confiderwe*' in Mutua as Dean of the Law School,

I spent many hours meeting with Mutua and urged him to resign for the good of the Law

School.

16. I had no involvement whatsoever in Mutua's handling ofMalkan's employment

at the Law School or the manner in which Mutuahasconducted himself in relation to Malkan's

lawsuit, including Mutua's unsupported claims about what occurred at the April 28, 2006

meeting of the Law School's Committee on Clinical Promotion and Renewal.

17. I did not attend that meeting but I have communicated with many colleagues who

did. Some of these colleagues have already testified and/or provided declamtions under penalty

of perjury. To a person, every one of the colleagues with whom I have communicated

4
Case 17-38, Document 30, 02/17/2017, 1975447, Page97 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page267 of 487

Ca~~~A~ ~flt~ ~i#44Pi~'6)fjj:rg~122

regarding that meeting has directly contradicted Mutua' s claim (made twice under oath) that

the Committee did not recommend that Malkan be renewed and promoted to Clinical Professor.

18. One of those who attended the meeting and contradicted Mutua's sworn

testimony was Professor James Gardner, my predecessor as Vice Dean for Academic Affairs.

On or about March 31, 2014, I spoke with Gardner in the Law School building. I explained to

Gardner that Mutua had testified under oath before the Public Employment Relations Board in

2010 and in his federal court deposition in December 2013 that on April 28, 2006. the CCPR

did not vote to recommend that Malkan be renewed and promoted to Clinical Professor but

voted to give him only a one year appointment as Director of Research and Writing. Gardner

appeared surprised to hear this and responded by saying u'fbats not what happened." Gardner

then recalled that over his opposition the CCPR did vote to recommend Malkan's renewal and

promotion to Clinical Professor. Gardner added that he accepted the vote as valid.

2i. Mutua's credibf!ity is certain to be attacked at trial, and that attack will be built

on the credible testimony and not.es of many distinguished law professors who attended the

April 28, 2006 meeting of the Committee on Clinical Promotion and Renewal. Fairness

dictates that I not be required to be tried alongside a co-defendant whose credibility has already

been and will continue to be severely undermined by his own sworn testimony. I therefore

respectfully ask the Court to grant me a separate trial.

Charles P. Ewing

Dated: August 12, 2014


Doc 111948882.1

5
Case 17-38, Document 30, 02/17/2017, 1975447, Page98 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page268 of 487


Ca~tt.i~HH{$ 1DocUmentE4) Ailikt068l30/4.4P~!l9.Jt 913122

Exhibit
L

"' ..... ~

0000211
Case 17-38, Document 30, 02/17/2017, 1975447, Page99 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page269 of 487

caoa~~~ oocurnemtt!im45 RR8Et~4Pciglg7:29if et 122-~--


~
. '.
I

'L 1

,.
,..,. ~ .
1 UNITED STAT$S DISTRICT COURT
I .. . l ~ .
"
. .'ft'Ii.S~lilRN I'>IS'l'RIC'I'
.
2 .OP .NEW YORK
3
.
. !
. .
------------:-~------r~-----~--------------~~-
~ -" :~ t ~ f
. 'I ..
. :

.J'.~~l'RBY KA.LUK'".
5 , Plaintiff,
t
I

,. 6 -vs- ' Index No. 12-CV-0236


!
7 Ill.KA~ W. M1nl1A and CBAIU..JIS p.,. BWill'G.- t,r.i their
'- '
I

r. B iudivi4ual capaaitie~,
\
'. 9 ; Defendants.

---~::~::::::-~:~::~-~~:;~~:~-~~~:-~~-~---
10
l . 11
r 12 BW%NG. held before Jeasioa
I
s. Sheldo~, Notary
13 P~b1ic; at: uu:o 11oil~Y, :Avat?-t Building,
,..
i 14 ~oo Del!lwax-e iv~nue, ls~.ite 1200, Buffalo,
' . . I
N_ew' York, ~~ Dece...-ibe~ aoth, .~o:i,3 at.. I .
. . I
16. 10t16 a~ m~ ' pursuant ~~o notige.
17
!
l. 18 APP~AllANCES: ~BBDS 8ROWJI' LAW, P,C.,
,..
I
19
BY: . BRYAH .1.RBJ&:C'r, BSQ
One Old Country aoad, Suite 347
5 ,

I Carle Place, New York 11514


L .
20 (516} $13-9.~50
A~to~neys for the Plaintiff.
21 I
nAKofua3T, LP,
22 BYr a OLPB OPPBJIJIB~MBR, BSQ.,
Avant uilding,.
j
23 200 Dlawa.re Aven.ue, suite 1200
~ ' Buffalo; ~ew York 14202
24 {716) $56~5500 .
Atto'rneys for the Defendant.,
' .25 Charle~ P. Ewing
I -

.___ __..._ ___,DEPAOLOOBOSBYiuwORTING.. a:DVIOES,INC.---


170-"Fraultlin Street, SU:Lte 6~1, ~falo,. New York l.4202
'1_16853-554'4

oooottz
Case 17-38, Document 30, 02/17/2017, 1975447, Page100 of 158

487

' . 23
C, EWING BY MR. A:RBEIT -- '12/20/13

'
r - " 1~
!

l be about?
;ii
.~
I;
l
' . 2 A. Well, it had tq, do wi&h his contract, the
3 termination of his c'1ftract, his removal from
the faculty, and the ;f.anner in which he .. had
been treated, by the dran. I think those are
4
the three areaa. !
f1 I
Q. Okay._ Did you begin f:i.v~stigating that
".
2Jrievanoe? :i:
i
l . 9 A. Yes.
10 Q. Okay. And can. you ter!ll me how you went a.bout
:l '.
11 inv~stigating that g~~evanoe?
12 A. Well, ! had talked tq!Jeff, so I had some
13 further background i~~o~m.ation oth,e:r than.
("'"

I
'
14 what 1 s included here.ii I~ fact, I m the one
1
.i
who suggested that. tliie grievance prooell!s might
i
i,.'
16 be a w~y to try to amiicably resolve the lack
17 of communiaation here:. I think I felt that
18 his primary concern, rlat:
!
fl
least as far as the
J.9 committee want, was tihat he wasn 1 t able to
!
20 oom.mun;t.oate with the :;dean. $~ I had that in
'
21 mind. i
22 I then aon~acted~akau Mutuaand.presented
23 the gist of this ta ~im, and he indicated to
24 me that he couid not 'speak to me on advice of
aounsel, b~a&use the~e is aurrent litigation

'--"----DEPAOLOCROSBYIEPORTING SERVICES, INC. __j


l,'"/Cl Franklin Street, Suite 6Qh. 1 Buffalo, New York l42tl'2
'116-8!~~!1544
(""'

0000273
Case 17-38, Document 30, 02/17/2017, 1975447, Page101 of 158

Document

Ca~$e~i(2.!~~ ~Y!'l'l@m~ ~~i.e/44P~~gg122

r
' .. ,,
i . i 24

BK~_ BY ARBBI: ': :.. /20/13


lr
. _:
1
nd ~hr~atenea i1tig~tion by Professor Malkan
against the un~versi~y, the lawsahool, maybe
c 3 even the dean. . i\
!
\ j
!
MR. lUtBEIT: Diid you know at the time
1
5 that there was -- so~:ry, str.ike' tha.t,
6 Q. Did you know b~fore 1peaking with the dean
7 that there was cur:re~t litigation involving
8 these factan
9 A. Well, yes. In Profe~sor Malkan 1 s letter to
the committee he. S$iJ that U'Ul? has alleged ~ny
::1 1
charge filed wl th thcl PERB, Maka,u. M\tt.ua
.

12 terminated. my emplo~ent. in or~er .to retaliate


13 me -- retaliat'e. agai1st me for involving the
r- . .
14 union, in this.'. griev . nae I repeat 'the
15 all~gatia~ at ~nti-u:ion: Sc I was aware of
l
1
16 the PERB. I
l7 Q. Did you believ"e that\ the fact that there wae a
18 PBRB pro9eeding prev4nted you from having
19 jurisdiction from tb~s matte~?
20 MR. OPPENB:EIME~= Form,
21 A. Not at t~at time, I +1dn 1 t:
i ..
22 Q. All right. Did it s~beequeatly ahang your
23 opinion?. In other w~rds, you eay 11 not at: that
l
24 time -- !
25 A. You mean did My opiton ~bang
F .,

! !.
i'

..._-----.DEPAOLOOROSBY fa:mpoRf!NG SERVICES, INC.


Franklin Street, Suite ,Ji~ Buffalo, New York 14202
7l~H.15~.~l544
{"'

00002'14
Case 17-38, Document 30, 02/17/2017, 1975447, Page102 of 158

When d~d:your tinion change?


. l
A. When I ~ead fhe faculty sen~te bylaws and the
employee ha~abook,

4 Q, And when did y~u re& the faeultysenate --


5 A, Sometime during that onth. I don't recall.
6 the exact.time.
('
i 7 Q, Let me -- I 1 m going o also show you the
a Defendant's Exhibit 27 that's -- oan I aee the
9 other one back?
10 A, Oh, su:re,.
1l' Q. Ok:a,y. All right:. I jth;l.nk y;;.iu were. sayj,,ng a~
12 some point you 1ooke1 at the faculty the
13 senate faculty.handb4okt and what is it
14 exactly? What 1 s thejname of it?
15 A. Well, there 1 ~ the -~!if you go to the facul
16 senate, you see in t~ere they have btia~s of
17 theit own which are ~eferred to in our1bylaws.
r
i
,lB Q. Okay.
19 A. And you go thE1re, an9' 'th!!in.' t.liey 'refer to
20 something calld thelstanding order of the
I .
21 faculty senate or st1nding orders, and then
22 you go there. I w~nt! there, and that. has a
23 m:i.mbu:- of sections dealing with gri'eifances and
24 complaints against f~cultr members.
25 Q. And so what was your 'u:r.u:ieretandingr I guEHHil,

!
\,.

I - .. ~
.-DEPAOLOOROSBY BJmiioRTING SERVICES, me.--
170 Franklin Stree~; Suite 661, Buffalo, mew York 14202
'!16-l>Sl'-5544

0000275
Case 17-38, Document 30, 02/17/2017, 1975447, Page103 of 158

7 Document

! 26
C. EWING -- BY itm AR.BEIT -- 12/20/13
i
revi~wing the Jaeulty ,handbook?
2 MR. OPPENBEIME~t Form.
3 A. That 1

4 Q, Sorey,
I .
Was it a :facru!,lt:y handbook or --
5 MR. OPPENH!IMB~: Stan.ding order,
Q. standing order?
A. Standing order of th~' faculty senate. That
6 well, Dean Mutua had lsai~ t~ me essentially
9 that he oould not codperate because of the
I .
lO pending litigation. \And h~ --.after I read 1
ll the fao_ul.ty. handbook \and the .standing c;irde:rs,
i
12 . it became -- two thi1gs became clear tome:
13 one is. that he 'was a9tin9' within ~~ not only
( . within his own right~, but actually he was
I

doing hat he should~do, that he ~bouldn 1 t ~


1 discussing the pendilg matters.that are .undex
\..

I
~itigation with me. J t

l. And, su11condly, t ,at. according to the


. l .
standing order of t-~ fao~ity ijnate, oaa
'
l , g:devant fil~a - - I ~o:rget exactly what the
21 wording is, but esae:ri.tially once you file any
22 ti~d of litigation a~ outside proaeeding, then
23 your grievanae withi~ the faaulty senate is
:24 te:rmina t:ed .
25 What I took fram 1 that was the aonaluaian
L

! . . . .
(, .. , t..----~-DBPAOIDOROSBY DPoRTlNG SERVICES, INO.~...,..---........
'
j
c"
170 Franklin Street, suite 501, Buffalo, New York 14202

oooo:tio
Case 17-38, Document 30, 02/17/2017, 1975447, Page104 of 158

Exhibit
M

0000
Case 17-38, Document 30, 02/17/2017, 1975447, Page105 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page275 of 487

ca~2rt2-Cl000~A=t0f5 ~st-a FM~~ ~OQEfS.W.9lf 122

November 11, 2011

Lynn Vance, Esq.


Governor's Office of Employee Relations (GOERS)
2 Empire State Plaza
Albany, NY 12223

Re: PERB U-28826, UUPv. State of New York


(State UniversityofNewYorkat Buffalol

Dear Ms. Vance,

I believe it Is necessary for me to Inform you that your client, Makau Mutua, dean of the SUNY at Buffalo
Law School, committed perjury in the first degree on March 31 and April 1, 2010.

In an attemptto justify his abuse of power, Mabu Mutua gave false testimony under oath pertaining to
a material fact in the case; specif1talfy, the faculty's approval of my reappointment to a presumptively
renewable, multi-year term contract at the rank of full cllnlcal professor, With 405(c)-protected status.
His false testimony was premeditated, plain, and unequivocal and he repeated it twice, on both direct
and cross-examinations. This, by statutory definition, is perjury in the first degree.

The enclosed document provides my lnlt.lal evidence of his perjury. If you haw any questions about the
circumstances it describes, I suggest you speak to Professors Nils Olsen, SUe Mangold, Dianne Avery, and
Guyora Binder. Nils Olsen, as you know, Is former dean of the law school. Sue, as vice-.dean, presided
over the meeting in question of the P&T committee on Aprll 28, 2006. Dianne, who served as vice-dean
and my immediate supervisor from 20002003, was present at the P&T committee meeting.

Guyora, who recruited me to Join the law school faculty In spring of 2000, Is a Distinguished SUNY
Professor ln the field of criminal law and has personal knowledse of all the facts in this case, including
my initial appointment to the nmk of clinlcal associate professor and my subsequent promotion to the
rank of full clinical professor.

In addition, Professor Markus"Dubber, now on the faculty of the University of Toronto, and Professor
Shubha Ghosh, now at the Univetsity of WISCOOsin, were both present at tiie P&T committee meeting
on April 28 and have confirmed to me that Dean Mutua's sworn testimony was utterly false. These two
indiViduals, who have subsequently severed their ties With SUNV at Buffalo, told me that they are
prepared to fully cooperate with any inquiry Into this matter. You may also wish to speak with any of
the professors who have been copied on this letter, all of whom were present to vote on my promotion.

The union is not representing me in this aspect of the case, which, of course, was not contemplated
when it agreed to help me fight my wrongful termination. At the cost of delaylng my own cause, I would
Case 17-38, Document 30, 02/17/2017, 1975447, Page106 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page276 of 487

Ca~aW.3::!t2~i't!KliS ~~.!4 ~I@ 68'i33M.J4:i ~9Q,1~122

have preferfed to return to Albany and call further witnesses to expose Makau Mutua ln the forum
where his perjuiy was committed, but the union was satisfied with the reeord we had established to
that point on the Taylor Law issues. Hence I am in the position of having to wait until Judge catlson
completes his deliberations, when I anticipate he will issue a finding that Makau Mutua is guilty of anti-
union animus, which in and of itself will be an unprecedented disgraceforthe law school and an
appalling scandal for President Trlpathi's administration.

At that time, I intend to file this information with the state's regulatory and law enforcement
authorities, induding the District Attorney of Albany County, the Office of the Attorney General (Public
Integrity Bureau), and the Committee on Character and Fitness of the Appellate Division d the Supreme
Court. I also Intend to share this information with the entire law school faailty, as many as twenty of
whom have direct Pers<>nal knowledge of the underlying facts.

I want to be clear that my sole purpose In writing to you Is to give the university a fair opportunity to
investigate my allegation of-criminal misconduct andtake appropriate action in response to the facts
that are now In yoor possession.

When any attorney or state Offtdal attempts to 5Ub\/ert tM judfelal process It Is a matter of gravest
concern to society. Makau Mutua is both. He Is al&c> responsible, as dean of the state university law
school, for the ethical legal education of hundreds of students. I hope the university cooperates with
me in getting to the truth about Makau Mutua before he does any more harm to me or damage to the
institution.

Jeffrey Malkan
12 Valleywood Ct. W
Saint James, NY 11780

cc: Tara Singer-Blumberg, Esq.


Dean Makau Mutua
President Satish Trlpathl
Chancellor Nancy Zlmpher
Professor Niis Olsen
Professor SUe Mangold
Professor Dianne Avery
Professor Guyora Binder
Professor George Kannar
Professor Isabel Marcus
professor Errol Meidinger
Professor Robert Steinfeld
Case 17-38, Document 30, 02/17/2017, 1975447, Page107 of 158

Case 17-38, Document 02/01/2017, 1961823, Page277 of 487

Makau Mutua direct examinatlon1 March 31, 2010 -

Q. All right. And then I'd like to direct your


attention to a faculty meeting that took place in 2006, In
which Mr. Malkan's reappointment was discussed. Oo you
remember such a faculty meeting?

A. I do remember the meeting. The meeting was called


specifically to discuss Mr. Malkan. In particular, it was
to discuss whether he should continue as the director of the
research and writing program and whether he should be
promoted from a clinical associate professor to a full
clinical professor. The meeting was presided over by the
vice dean for academics.

Q. Who Is that?

A. Professor Sue Mangold. Mangold, M-A-N-G-0-1.-0.


sue Mangold, because the Dean Olsen was not -- was away on a
trip. The meeting began on a note of controversy, In which
faculty members argued that the purpose of the meeting was
not clear. The reason for that was because faculty members
asked how Jeff Malkan could be promoted from an associate
dinieal professor to a full cllnfcal professor when he was
not teaching in clinics in the first place, and many
questioned why he had been appointed in the first place or
been given the title of an associate dinical prOfessor when
he was not a clinical professor. But that dtscuSsion was-
was put aside and we focused our attention on discussing
Jeff Malkan's sultablllty as director of the rese1arch and
writing program and that discussion was very fleated.

Facuity members were disappointed about the nature of this


particular program. I can say that I have not been in many
faculty meetings where emotions ran so high and, you know,
much of the angst was about why the dean and the faculty had
not responded to the very poor state of the legal research
and writing program and why no one had, you know, brought up
the matter of Jeff Malkan's leadership of the program to a
faculty meeting for discussion. It was felt by many that -
you know, that Jeff Maikan should not continue to be
director of this program, that we should not reappoint him
because he had failed utterly as director of the program, to
lead it, and that we should scrap the program and start from

0000280
Case 17-38, Document 30, 02/17/2017, 1975447, Page108 of 158

Case Document 22, 02/01/2017, 1961823, Page278 of 487

scratch by rethinking the entire program.

So this particular meeting resolved two things.

One, that Mr. Jeff Malkan should be given an additional year


as director of the program, after which we would look for a
new director of the program. The reason for this additional
year was to give us more time to look for a new director and
to give Mr. Malkan time to look for employment elsewhere.

The second resolution of that particular faculty meeting was


that the dean would be asked to a appoint a committee of the
faculty to study the program and to reconstruct It from the
ground up. These were the two resolutions ()f this
particular meeting.

Q. All right. What, other than the -- so is it your


testimony that the faculty ultimately recommended to Dean
Olsen to reappolnt Professor - Mr. Malkan for one year as
director?

A. The faculty resolved rt to ask the vice dean for


academics, Professor Mangold, to ask the dean of the law
school to reappoint Mr. Jeff Malkan to a one year term, a
terminaf -- one year terminal -- you know, term, as director
of the program.

Q. All right. And do the faculty take any action


regarding Mr. Malkan's promotfon?

A. I do not recall the faculty acting on that part


of, you know, the agenda of the meeting. The discussion
regarding Jeff Malkan's directorship of the program was so
heated and, you know, so expr~ive, I should say, that the
faculty was consumed at that particular !Ssue and once we
decided on these two resolutions, the meetlngbrotce up.

Q. Were you personally concerned and in agreement


that Mr. Malkan had failed utterly as director of the
research and wrfting program?

A. Not only was I concerned, I was one of the main


advocates for the position that we should terminate Jeff
Malkan immediately, not even granting him an additional year

0000281
Case 17-38, Document 30, 02/17/2017, 1975447, Page109 of 158

Case Document 02/01/2017, 1961823, Page279 of 487

Ca9Sa1;41tt2-00.00~:JMKJ6S llbmumlmt 68-1 IRUetltllB13ln'.a&4 P~ea669i1122

to transition. I made the argument before the faculty that


we should not give him one more year, because we did not
have an additional year to waste on our students, without
giving them a quality product in this particular program. I
felt that we would be wasting our students' resources and
time to allow him to continue. as director of the program. I
made this particular case. The faculty in It's wisdom
decided, you know, to give him one year, and so there was
disagreement between myself and most of the faculty on that
situation.

Mutua cross-examination, April 1, 2010 -

Q. So your understanding that his appointment as


Dtrectorwas"' t don't remember what words you
used -- how it related to his job as an instructor
Jn the program basically, what was that
understanding based on?

A. My understanding- my understanding was that If


Jeff ceased to be a Director of the program, he
would also cease to be an instructor In the
program.

Q. How does that impact his cllnlcal appointment, or


how did you understand it to impact his clinical
appointment?

A. As far as I was concerned, Jeff never had a


clinical appointment.

Q. And Is It your testimony that there was no vote


held on his promotion at that meeting?

A. Promotion for what?

Q. from clinical associate to fulf professor.

A. My understanding is that we did not act on that


particular item.

Q. There was no vote?

A. There was no vote on that particular issue.

0000282.
Case 17-38, Document 30, 02/17/2017, 1975447, Page110 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page280 of 487


Cas@a64a~tQ-0000Sa&RUk!H&s IJ1locurmeltt9i Filed GILBl1!114 Raljgf23.~ 9lJ 122

Q. On the promotion issue?

A. Yes.

Q. So as far as you knew, after that meeting he


wasn't going to be promoted because nobody had
voted on it?

A. That's correct.

Q. And it had to be voted on by the committee?

A. It had to be voted on by the committee.

Q. And did the committee hold a different meeting


where they hefd that vote?

A. Repeat the question.

Q. Did the committee hold a separate meeting,


reconvene to hold a vote on his promotion?

A. No, they did not.

Q. So when you became Dean and you said that's when


you first saw his appointment letter, Is it your
testimony, is it yoor ciaim that Nils Olsen
promoted him without going to the committee and
getting a vote?

A. tt is mv understanding that the Dean acted ultra


vires.

LAW JUDGE: Can you spell that?

THE WITNESS: U-1-t-r-a v-i-r-e-s.

A. That he acted without a recommendation from the -


from the committee.

0000283
Case 17-38, Document 30, 02/17/2017, 1975447, Page111 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page281of487

ca~l~Ci-ooaae~A.-l<SS ~siH FlmlWBWll14 Pli!lggt84.0f95? 122

e-mail from Professor Markus Dubber, now at University of Toronto

---Original Message--
From: markus.dubber@utoronto.ca
Sent: Wednesday, Jwie 02, 2010 10:43 AM
To: Jeffrey Malkan
Subject: Re: question about my contract renewal

Hi Jeff:

I don't have super detailed memories of the meeting. but to the best
of my recollection, as they say, here goes:

There was discus8ion about the LRW program and there was discussion
about you. People talked about thedircctionofthe program and made
mare or less vague ooises about reimagfuing the program, perhaps by
integrating appellate advocacy in some form or another (I associate
Lucinda and Jim Gardner with this SQrt of talk). Some people wondered
whether you were the right person to lead this reimagination effort;.
others thought you were; yet others weren't all that excited about tlte
need to do much reimagining, since the program was doing just fine as
it is, though of course it's always nice to keep improving things.

Whatever, at some point, though, these issues (i.e., your promotion


vs. The Future of the Program) were separated-since the two issues
were, in fact. separate-and a vote was heJd on the personnel issue
(which ostensibly was the point of the P(romotion)&T(enure) Committee
meeting, as opposed to a wide ranging discussion of what sort of ideas
we might have about a LRW program). That vote. as I remember it, came
out in your favor, with a majority voting to grant you tenure as a
clinical professor. There was also some sort of recommendation, I
think, to be made to the dean, somehow, that he or the fileulty or both
should take a look at the LRW program in the near future (perhaps
after a year?). But it was clear, as I rem.ember it, that you would be
the person running the program at that time and that whatever review
of the LRW program would occur would involve you as its director and
clinical professor with tenme. In other words, the question whether
you would be the right person to run the program whenever this
revision wouJd take place was answered, and answered clearly and
explicitly, in the aff'mnative. Ifl remember correctly, again, the
point of the vote was to cut short a meandering discussion of all
things LRW, and, again. the personnel question (whether you should
receive clinical tenure and remain as director of LRW and would be the
right person to lead the program when, and if, the time came to review
it in a year or so, as the dean might decide) was answered in the
affinnative.

0000284
Case 17-38, Document 30, 02/17/2017, 1975447, Page112 of 158

Best,

Markus

Markus Dubber
Professor of Law
University of Toronto
www.iaw.toronto.ca/facull;y/dybbet

e-mail from Professor Niis Olsen, former dean of SUNY at Buffalo Law School

From: Nils Olsen


Sent: Monday, April 05. 2010 I 1:59 AM
To: Jeffiey Malkan
Subject: Re: question a.bout my promotion to Clinical Professor

Hi Jeff L.et me assure you that I have never lied to you. You may recall that I
was unable to attend your promotion meeting because my father was seriously m
at the time and I was with him in Madison. As a resuit, Sue Mangold presided.
Shortly after the meeting concluded, Sue called and we had an extensive
conversation. both a.bout the result - she informed me that the faculty voted to
approve your reappointment - and about her presentation to the faculty concerning
the terms of the reappointment -- that it was subject to the ABA standards on
clinical appointments and was, accordingly a multi-year appointment with
termination only for cause. As you know, to save time and to ensure that the
oontmct conformed to the terms presented at the meeting. Sue prepared the draft
that you and I eventually signed. As I am sure you are aware, Sue is a person of
the highest integrity and honesty. She would never lie about the results ofthe
meeting and I have .absolute confidence in her report about the proceeding.
MOreover, there is simply no reason that either of us would have to misrepresent
the faculty vote in such a manner. For what it's worth, I also had at least one
conversation after my return about the meeting and vote with a colleague that was
entirely consistent with reappointment. l hope that this reassures you and
contributes to at least a relative peace of mind oonceming this matter.

Nils

0000285
Case 17-38, Document 30, 02/17/2017, 1975447, Page113 of 158

Exhibit
N

0000286
Case 17-38, Document 30, 02/17/2017, 1975447, Page114 of 158

From: Jeffrey Malkan <Jeffrey malkan@msn.r.:om>


Dam: Wed, 27 Nov 2013 15:35:14-0500
To: "L~nn,Vance@GOER.ny,gov" <l.}!op.yance@gger.nv.ggv>, "UesJ,zwiclslbauer@suny.ggu"
<llesLzwicklbauer@suny.edu>, <~eed@buffaio.edu>, <Ml!rvis@buffalo.edu>
cc: Charles Ewing <!:ewlng@buffalo.edl!>
Subject: Makau Mutua's perjured testimony

Dear Ms. Vance,

On March 31, 2010, you presented swom testimony from your dlent, Makau W. Mutua, in which he
stated, based on his personal knowledge, that I did not have a valid faculty appointment or a valid
employment contract because the law sdlool's Promotion and Tenure (P&T) Committee, on April 28,
2006, failed to vote on my reappointment and promotion.

He testified that the P&T Committee instead passed a resolution to recommend that I be granted a
one-year terminal administrative appointment and then dismissed, with the consequence that then~
Dean R. Nils Olsen had no legal authority to take any personnel action on my behalf. He also testified
that if no one knew what Jeff was still doing In the building" after that terminal year elapsed in May
2007. This testimony was entirely false. He repeated exactly the same lie on cross-examination the
next

This was an intricate and premeditated lie about a material and potentially disposit!ve fact in this
proceeding and related litigation. You and Dean Mutua had four months to prepare his direct
and he has since had three years to recant. I could not respond in the courtroom
ti>ITm!'l .... rw
time because, of course, I had oot been present at my own P&T meeting so! could not claim to have
personal knowledge of what happened at these proceedings.

we received the transcripts and I v.>as able to make inquiries, I provided evidence to you
,.,....1-1fi~M'I
mail on November 2010 (see attachment) that a fraud had been on a state

000028'7
Case 17-38, Document 30, 02/17/2017, 1975447, Page115 of 158

administrative tribunal by the dean of the state university law school. You decided, however, that my
allegations dld not warrant a response. (See e-mail exchange below.} My evidence at the time
consisted of e-ma~ messages to me from former Dean R. Nils Olsen and Professor Markus Dubber
(now Professor of law at the University ofToronto}, This was certainly credible evidence from
credible sources that would obligate any responsible attorney to check the veracity of his or her
client's testimony, and which you could very easily have done by telephone or e-mait

This lie, of course, calls into question Dean Mutua's credibility on every other point of h Is testimony,
in duding his defamatory attacks on my competence and character as well as his claim that he never
met with Vice--President for Human Resources Scott Nostaja to discuss the UUP's intervention on my
behalf.

I suggest that you contact David J. Sleight, Esq. at the Buffalo AG's office, If he has not already
contacted you, He has unequivocal evidence of Dean Mutua's perjury, Including sworn testimony
from former Vice--Dean Susan V.Mangold (who chaired the P&T Committee meeting and counted the
votes on a tally sheet which. has been marked as evidence}, former Vic&-Oean Dianne Avery {who kept
her own tally sheet of the vote, also marked as evidence), Professor Robert Steinfeld (who introduced
the resolution recommending my reappointment}, and Professor Rebecca French (who also voted on
my reappointment) ..

There are many more tenured faculty members, including Professors Fred Konefsky, George Kannar,
Isabel Marcus, Errol Meidinger, Guyora Binder, James Gardner, Betty Mensch (retired), and Shubha
Ghosh (now at the University of Wisconsin} who were present on Aprll 28, 2006 and can confirm the
same ugly fact - that Dean Mutua attempted to justify his retaliation and abuse of power by !ying
under oath about my faculty appointment.

At the very least, you need to begin by reporting this situation to Chairman Jerome Lefkowitz, Director
Monte Klefn, and AU Kenneth s. Carlson at PERB, Chancellor Nancy Zimpher at SUNV Central, and the
Public lntegr1ty Bureau of the Office of the Attorney General. I sincerely hope that you will take the
Initiative and do the right thing, that is, whatever Is necessary to correct the injustice that resulted
from your client's criminal misconduct.

Yours truly,

Jeffrey Malkan
Case 17-38, Document 30, 02/17/2017, 1975447, Page116 of 158
7
I'

Exhibit
0

0000288
Case 17-38, Document 30, 02/17/2017, 1975447, Page117 of 158

Document 481

From: Jeffrey Malkan <~ffrey.malkan@out!ook.c.Q!JJ>


Date: Sun, 20 Apr 2014 21:45:23 -0400
To: usak.e-r_, Jessica" <lbaker4@buffalo.ed].>; "robert~ruggeri@suny.edu"
<rnbert.ruggeri~SUQY.edu>, "jljarvis@buffalo.edu" <Jljarvis@buffalo,edu>, "jmewton@buffalo.edu"
<jmewton@bufflo.edu>, "gbinder@buffalo.edu" <gbinder@buffalo.edu>, Charles Ewing
<cewing@buffalo.edU>, "ubprovost@buffalo.edu" <yb(!rovost@buffalo.edu>, "newsroom@ubspectrum.com"
<n~wsroom@ubspectrum.com>, "!Ynn.\(ince@goer.ny.gQy"
<fyrm.11ance@goer.ny.gov>, "liesl.zwkklbauer@sunv.edu" <liesl.zwicldbauer@s1.m1,!.ei;lu>, "Jereed@buffalo.edu"
<jereed@!buffalo.edu>, "finleylu@buffalo.et].Y" <finlevlu@buffalo.edu>, "mutua@buffa!o.edu"
<mutua@buffulo.edU>
Subject: Dean Makau W. Mutua's perjury legal analysis

This message ls part of the record I am compiling to document your refusal to respond to my repeated
attempts since November 11, 2010 to report a crime by one of your senior administrators.

Dear President Tripathi,

! should perhaps explain Dean Mutua's culpability to you !n legal terms, as I understand the relevant
~"''*'''~"'<: of the penal statutes.

1. His testimony was false. At this point, seven tenured professors have confirmed that Dean Mutua
lied aboutthe vote of the Promotion and Tenure (P&Tj Committee on April 2006 that
recommended my reappointment and promotion to full dlnical professor. Five were under oath
(Professors Olsen, Avery, French, Steinfeld, Avery} ;;nd two responded by e"mall {Professors Dubber

00'00290
Case 17-38, Document 30, 02/17/2017, 1975447, Page118 of 158

Case 17-38, Document 02/01/2017, 1961823, Page288 of 487

ca~!:~oo~mm~~ ~~ ~~m~t14 .Raa@Slt:P4~ 122

and Ghosh). Their testimonies were based on personal knowledge and supported by
contemporaneous documentary evidence, specifli::aHy, handwritten tally sheets of the vote count.
(See links below.) Not a single professor has come forward to corroborate Oean Mutua's Iles. In
addition, Dean Mutua himself admitted that crucial subpoenaed documents regardfng my faculty
appointment had been destroyed by the Dean's Office, although he attempted to blame former~Dean
R. Nils Olsen, Jr. and former-Vice Dean Susan V. Mangold for vandalizing these files. Such a
bizarre libel by a law school dean against his colleagues Is aberrant and unprecedented.

2. His false testimony was Intentional. Dean Mutua lied under oath at the hearing of the PubUc
Employment Relations Board (PERS) on March Sl-Aprll 1, 2010. In that proceeding he !led under
direct examination and, on the following day, repeated the same Iles under cross~xamlnatlon. His
false testimony was premeditated- prepared on rour month's advance notice - and was intended to
cause a miscarriage of justice, which he succeeded in doing. His motivation was to justify his malicious
misconduct and abuse of pawer, which includes breach of contract, violation of state labor laws,
defamation, tortious interference with employment relations, misrepresentations of fact to the
American Sar Association (ASA} Section on Legal Education, refusal to comply with mandatory law
school personnel and grievance procedures, and denia Iof federal due process acting under color of
state law.

3. His false testimony was repeated in federal court. After an foterval of three years, during which
he failed to correct or recant his false testimony, he repeat'ed and embellished the same lies at a
deposition taken on December 19, 2013 under the auspices of the federal court of the Western
District of New York. This was a second attempt to leverage the aedlbility and trust conferred by his
state office Into a miscarriage of Justice. Just as he knew that his sworn testimony would likely
be treated deferentially by any judge before whqm he appears, he can expect that he will be held to
the highest standards of diligence and honesty when his perjury iS examined by state and federal
prosecutors.

4. His false t~mony was material to the proceedlnp In which it was made. Dean Mutua falsely
claimed that that the P&T Committee never considered a resolution 11:0 vote on my faculty
appointment, but instead voted only to recommend that I be granted a one-year terminal
appointment to an administrative post. On this basis, he claimed that all subsequent employment
actions taken on my behalf by former-Dean Olsen, Including the issuance of my contract and the
renewal of my faculty appointment, were "ultra vires" and voidable at his discretion. If true, this
testimony might be construed to negate essential elements of my legal claims In state and federal
courts.

s. You may be culpable for protecting Dean Mutua and obstructing justice. You must recall that, on
December 5, 2013, you signed a sworn legal instrument In which you claimed that appointments and
promotions for law school clinical faculty do not pass across the Provost's desk. You further claimed
that you were unaware of my allegations against Dean Mutua because SUNY Counsel intercepts your
mail without briefing you on legal matters and you do not read the UB Spectrum, even articles in
which you are accused of wrongdoing. I don't think It will be difficult for faw enforcement agencies
to determine that these careless fabrications were materially and knowingly false.

Your motivation was to protect a high-ranking member of your administration from the investigation

0000291
Case 17-38, Document 30, 02/17/2017, 1975447, Page119 of 158

Document 487

of a crime. Over four months have passed since you signed that affidavit and Makau W, Mutua is still
occupying the Dean's Office under your protection. I have copied the relevant federal and state
perjury statutes below. You may want to retain outside counsel to review the University's as well as
your own iiabllity since, on review ofthe evidence, i believe that most experts in criminal law would
find you complicit in this subversion of the judicial process. In addition, the three tenured SUN\I
Buffalo professors who specialize in criminal law- Charles P. Ewing, Guyora Binder, and Luis E. Chiesa -
- will no doubt give you the benefit of their scholarly expertise, if you ask them.

Sincerely,

Jeffrey Malkan

Jeffrey has flies to share with you on OneOrivl!I. ro view them, click the links below.

00 Vh:::e-Dean's Sue Mango!d's tally sheet of vote count 4"28-2006,pdf

I I Professor Dianne Avery's notes on P&T Committee meeting 11-28-2006.pdf

18 U.S. CODE 1621 ~ PERJURY GENERALI.Y

(1) having taken an oath before a competent tribunai, officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he wm testify, declare. depose, or certify truly, or that any written
testimony, declaration, deposition, or certificate by him subscribed, ls true, willfully and contrary to such ooJh states or
subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section lZli of
title~ United States Code, willfully subscribes as true ai-iy material matter which he does not believe to be true;

is guilty of perjury and shall, eiroept as otherwise expressly provided by law, be fined under this title or Imprisoned not
more than five years, or both. This section is applicable whether the statement or subscription is made within or
without the United States.

New York Penal law S 210. 15 Perjury in the fir~t degree,


A person is of perjury in the first degree when he swears
. falsely arid when his false statement (a} consists of testimony, and {b)
is mati:rlal to the action, or matter in which it Is made.
in the first degree Is a dass D felony.
Case 17-38, Document 30, 02/17/2017, 1975447, Page120 of 158

Exhibit
p

000029J
Case 17-38, Document 30, 02/17/2017, 1975447, Page121 of 158

487

From: Jeffrey Ma!kan [mal!to:jeffrey_malkan@msn.com)


Sent: Tuesday, April 22, 2014 10:20 AM
To: !iesl.zv,licklbauer@suny.edu
Cc: lynn.vance@goer.ny.gov; robert.ruggeri@suny.edu; Reed, Jeffrey; .Jmv!s, James; Baker, Jessica; Ewing,
Charles; Binder, Guyora
subject: RE: Dean Makau W. Mutua's perjury- legal analysis

Ms. Zwlcklbauer,

This is the type of information you cannot refuse to accept because it pertains to your legal obligations.
You were co-counsel in a trial in which a verdict was obtained by the use of false testimony. You and
Ms. Vance had evidence that Dean Makau W. Mutua was lying under oath long before the AU issued
his decision. The evldeoce I provided to you and Ms. Vance was credible and consisted of e-mails from
former-Dean It Nils Olsen and Professor Markus Dubber (now at the University of Toronto}.

It would have been simple enough for you to assign someone In your office to make a few phone ca!ls
or send a few e-mails to ensure that your client was not lying to vou, but you refused, which was a
violation of your duty as an officer ofthe court in a civil matter. Now it is dear beyond a reasonable
. doubt that your dient was lying to you and that his lies were premeditated and material, Hls false
testimony was intenck!d to cause a miscarriage of justice, and It dld.

I am making a record ofthese facts that I intend to take the Committee on Character and Fitness as a
result of which ! believe that you and Ms. Vance may be disciplined or disbarred. As attomeys for the
state who dishonest means to deny a fair hearing to a member ofthe public, I beUeve you
will be held to the highest standard of diligence and honesty.

If you don't understand your obligations, I suggest you confer with Mr. Ruggieri, There is stm time for
SUNY Counsel to take ameliorative action by informing the Public Employment Relations Board
Case 17-38, Document 30, 02/17/2017, 1975447, Page122 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page292 of 487


Ca~~!:~90~~3fJt~~ ~~ FMcmi13W-f4 F'ia-6.~@J.>t!~ 122

that a fraud had been perpetrated on the court and that the tainted decision must be vacated and
remanded. I am copying the relevant provisions of the Rules of Professional Conduct below. The
evidence you had in 2011 warranted an Investigation, but now you don't even have to investigate
because the evidence available in the federal record. You only need to contact AG David Sleight In the
Buffalo office.

Jeffrey Malkan

New York Lawyer's Codlf ofProfessionaJ~

DR 7-102 (1200.33] Representing a ClieD.t Within the Bounds of the Law.

A. In the representation of a client, a lawyer shall nott

I. File a suit. assert a position, conduct a defense, delay a trial, or take other action on behalf of the
client when the lawyer knows or when it is obvious that such action would serve merely to harass or
maliciously injure another.
2. Knowingly advance a claim or defense that is unwarranted wider existing law, except that the hj.wyer
may advance such chtim or defense if it can be supported by good faith argument fOr an extensio~
modification, or reversal of existing Jaw.
3. Conceal or knowingly fail to disclose that which the lawyer is required by law to reveaL
4. Knowingly use perjured testimony or false evidence.
5. Knowingly make a false statement of law or met.
6. Participate in the creation or preservation of evidence when the lawyer knows or it is obvious that the
evidence is false.
7. Counsel or assist the client in conduct that the lawyer knows to be illegal or fraudulent.
8. Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

B. A lawyer who receives information clearly estab01hing that;

1. The client has, in the course of the representation, perpetrated a fraud upoa a person or
tribunal shall promptly Call upon the client to rectify the same, ud if tile client refuses or is
unable to do so, the lawyer shalJ reveal the fraud to the affected person or tribunal, except when
the information Is protected u a confidence or secret.

2. A person other than the client has perpetrated a fraud upon a tribunal shall reveal the fraud to the
tribunal.

New York Rules of Professional Conduct (effective Aprll 1, 2009)

RULE 1.0: TERMINOLOGY

(i} "Fraud" or "fraudulent" denotes. conduct th at is fraudulent under the


substantive or procedural law of the applicable jurisdiction or has a purpose to deceive,
Case 17-38, Document 30, 02/17/2017, 1975447, Page123 of 158

provided that It does not include conduct that, although characterized as fraudulent by
statute or administrative rule, lades an element of sci enter, deceit, intent to mislead, or
knowing failure to correct misrepresentations that can be reasonably expected to induce
detrin1ental reliance by another.

(n} "Person" includes an lndMdual, a corporation, an association, a trust, a


partnership, and any other organization or entity,

RULE 3.3: CONDUCT BEFORE A TRIBUNAL


(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a


false statement of material fact or law previously made to the trtb1..mal by the
lawyer;

(2} fall to dlsdose to the tribunal controU!ng legal authority known to the
lawyer to be directly adverse to the position of the client and not disclosed by
opposing counsel; or

(3) offer or use evidence that the lawyer knows to be false. If a lawyer,
the lawyers dien.t, or a witness called by the lawyer has offered material evidence
and the lawyer comes to know of its falsity, the lawyer shall take reasonable
remedial measures, induding, if necessary, disclosure to the tribunal. A lawyer may
refuse to offer evid~mce, other than the t~-tlmony of a defendant lo a criminal
ls
matter, that the lawyer reasonably believes false.

(b) A lawyer who represents a client before a tribunal and whoknowsthrta


pel'Son intends to engage, Is engaging or has engaged Jn crlmlnal or fraudwent conduct
related to the proceeding shaft take reasonable remedial measures, indudlng, If necessary,
disclosure to the tribunal. ,

Ru!e 3.3: Comments

[1J This Rule governs the conduct of a lawyer who is representing a client In the
proceedings of a tribunal. See Rule 1.0(w) for the definition of "tribunal." It also applies when
the lawyer is representing a client in an ancmary proceeding conducted pursuant to the tribunars
adjudicative authority, such as a deposition. Thus, for example, paragraph {a)(3) requires a
lm,vyer to take reasonable remedial measures if the !awyer comes to know that a client has
offered false evidence In a deposition.

Lawyers have a sped al obligation as officers col.lit to a tribunal


against criminal orfraudulent conduct that undermines the integrity of the adjudicative process.
Accordingly, paragraph (b) requires a lawyer who repre~ a dient in an adjudicative
proceeding to take reasonable remedial measures, including dlsdosum If necessary, whenever
the lawyer knows that a person, indudlng the lawyer's client, intends to engage, is EJnpging or
Case 17-38, Document 30, 02/17/2017, 1975447, Page124 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, 487


cas~.!2.:~=e~5*~~w~s ~t~ t:i~~Amhh ~I~~ 122

has engaged in aiminal or fraudulent conduct related to the proceeding. Such conduct Includes,
among other things, bribing, intimidating or otherwise unlawfully communicating with a witness,
juror, court official or other participant In the proceed ins; unlawfully destroying or concealing
documents or other evidence related to the proceeding; and falling to disclose information to the
tribunal when required by law to do so. For example, under some circumstances a person's
omission of a material fact may constitute a crime or fraud on the tribunal.

From: Uesl.Zwicklbauer@sun'(.'51u
To: jeffrey.malkan@outlook.com
Subject: RE: Dean Malcau W. Mutua's perjury~ legaf analysis
Date: Tue, 22 Apr 2014 12:58:22 +oooo

Please stop emailing me. Thanks.

From: Jeffrey Malkan fmailtp;iefft;ey.mafkan@outlggk.cpm]


Sent: Sunday, April 20, 2014 9:45 PM
To: Baker, Jesslat; Ruggeri, Robert; Jatvls, Jr., James (UnlYerslly at&.tffafo); Jm!Wtnn@!:!Uffalo~u;
gbirufer@buffalo.edu; ceWin9@buffalo.edu; Zukoski, Charles (Unlver$lty at Buffalo);
newsroom@ubspeclrum.com; 1Ynn.vance@goer.nv:.goy; Zwlcklbeuer, Uesl; Reed, Jeff {UnlVersity at Malo);
fln!eytu@buffalo.edu; mutua@buffalo.edu
Subject: Dean Makau W. Mutua's perjury legal analysis

This message is part of the record I am compiling to document your refusal to respond ro my repeated
attempts since November 111 2010 to report a crime by one of your senior administrators.

Dear President Trlpathi,

I should perhaps explain Dean Mutua's culpability to you In legal terms, as I understand the relevant
provisions ofthe penal statutes.

1. His testimony was false. At this point, seven tenured professors have confirmed that Dean Mutua
lied about the vote of the Promotion and Tenure (P&T~ Committee on Aprll 28, 2006 that
recommended my reappointment and promotion to full clinical professor. Flve were under oath
(Professors Olsen, Avery, French, Steinfeld, Avery) and two responded by e-mail (Professors Dubber
and Ghosh}. Their testimonies were ba5ed on personal knowledp and supported by
contemporaneous documentary evidence, speclflcally, handwritten tally sheets of the vote count. (See
links below.) Not a single professor has come forward to corroborate Dean Mutua's lies. In addition,
Dean Mutua himself admitted that crucial subpoenaed documents regarding my faculty appointment
had been destroyed by the Dean's Office, although he attempted to blame former-Dean R. Nils Olsen1
Jr. and former-Vice Dean Susan V. Mangold for vandalizing these files. Such a bizarre libel by a law
school dean against hi$ colleagues Is aberrant and unprecedented.

2. His false testfmony was Intentional. Dean Mutua lied under oath at the hearing of the Public
Employment Relations Board (PERB) on March 31-Aprll 1, 2010. In that proceeding he lied under direct
examination and, on the following day, repeated the same lies under cross-examination. lf1s false

00002tr1
Case 17-38, Document 30, 02/17/2017, 1975447, Page125 of 158

testimony was premeditated- prepared on four month's advance notice -- and was intended to cause
a miscarriage of justice, which he succeeded in doing. His motivation was to justify his malicious
misconduct and abuse of power, which includes breach of contract, violation of state labor laws,
defamation, tortious Interference with emplovment relations, misrepresentations of fact to the
American Bar Association (ABA} Section on Legal Education, refusal to comply with mandatory law
school personnel and grievance procedures, and denial of federal due process acting under color of
state law.

3. His false testimony was repelilted in federal court. After an Interval of three years, during which he
failed to correct or recant his false testimony, he repeated and embellished the same Iles at a
deposition taken on December 19, 20131.mderthe auspices of the federal court of the Western District
of New Yori<. This was a second attempt to leverage the credlbllity and trust conferred by his state
office Into a miscarriage of justice. Just as he knew that his sworn testimony would likely be treated
deferentially by any judge before whom he appears, he can expect: that he will be held to the highest
standards of diligence and honesty when his perjury is examined by state and federal prosecutors.

4. His raise testimony was material to the ~11115 in which it was made. Dean Mutua falsely
claimed that that the P&T Committee never considered a resolution to vote on my faculty
appointment, but instead voted only to recommend that I be granted a one--ye;;ir terminal appointment
to an administrative post. On this basis, he claimed that al! subsequent employment actions taken on
my behalf by former-Dean Olsen, including the Issuance of my contract and the renewal of my faculty
appointment, were "ultra vires" and voidable at his discretion. If true, this testimony might be
construed to negate essential elements of my legal claims in state and federal courts.

5, You may be C"..!lpab!e fer protect!ns Dean Mutua and ob5f:meting justice. You must recaii that, on
December 5, 2013, you signed a sworn legal Instrument In which you ciaimed that appointments and
promotions for law school clinical faculty do not pass across the Provost's desk. You further dalmed
that you were unaware of my allegations against Dean Mutua because SUNY Counsel intercepts yom
mail without briefing you on legal matters and you do not read the US Spectrum, even articles in which
you are accused of wrongdoing. I don't think it will be difficult for law enforcement agencies to
determine that these careless fabrications were materially and knowingly false.

Your motivation was to protect a high~ranking member of your administration from the investigation of
a crime. Over four months have passed since you signed that affidavit and Makau W. Mutua is still
occupying the Oeain1s Office under your protection. I have copied the relevant federal and state
perjury statutes below. You may want to retain outside counsel to review the University's as well as
your own liablllty since, on review of the evidence, I believe that most experts in criminal law would
find you complicit In this subversion of the judicial process. In addition, the three tenured SUNY
Bumio professors who specialize in criminal law- Charles P. Ewing, Guyora Binder, and lu!s E. Chiesa
~ will no doubt give you the beneflt of their scholarly expertise, if you ask them.

Jeffrey Maikan

000028t!
Case 17-38, Document 30, 02/17/2017, 1975447, Page126 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page296 of 487

Cas~~!l~~~~~SODoocmtal~ M@d 01/~ ~ ! 122

Jeffrey has flies to share with you on OneOrlVe. To view them, cffck the links below.
Ii

18 U.S. Code 1621- Perjury generally


Whoever-

(1) having taken an oath befOre a competent tribunal, officer, or person, In any case in which a law of
the United States authorizes an oath to be administered, that he wlft testify, declare, depose, or certify
truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, Is true,
willfully and contrary to such oath states or subscribes any material matter which he does not believe
to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as pennltted
under section 1746 of title~ United States Code, willfully subscribes as true any material matter
which he does not believe to be true;

Is guilty of perjury and shall, except as othef'Nlse expressly provided by law, be fined under this title or
Imprisoned not more than five years, or both. This section Is applicable whether the statement or
subscription is made within or without the United States.

New York Penal law S 210.15 Perjury tn the first degree.


A ~rson is guilty of perjury in the first degree when he swears
falseiv and when his false statement (a) consists of testimony, and (b)
is m~terlal to the action, proceeding or matter in which it is made.
Perjury In the first degree is a class Dfelony.

000029::1
Case 17-38, Document 30, 02/17/2017, 1975447, Page127 of 158

487

V. Makau Mutua Deposition, Dec. 19, 2013

OOOO~HI
Case 17-38, Document 30, 02/17/2017, 1975447, Page128 of 158

17-38, Document 22, 02/01/2017, 1961823, Page298 of 487


Case 1:12-cv-00236-MAT-HKS Document 63-1 Filed 08/30/14 Page 70 of 346

1 UNITED STATES DISTRICT COURT


2 WESTERN DISTRICT OF NEW YORK

3 -------------------------------------------------
4 JEFFREY MALKANI

5
6 Plaintiff,

7 -vs- FILE NO. 12-CV-0236


8 MAKAU w. MUTUA and CHARLES P. EWING, in their
individual capacities,
9

10 Defendants.

11 --------------------------------------------------
12 Examination before trial of MAKAU W. MUTUA, held
13 before Kelly S. Hairston, Notary Public, at DAMON MOREY,
14 Avant Building, 200 Delaware Avenue, Suite 1200, Buffalo,
15 New York, on Thursday, December 19th, 2013 at 10:00 a.m.,
16 pursuant to notice.
17 APPEARANCES LEEDS BROWN LAW, P. C. ,
BY: BRYAN ARBEIT I ESQ. ,
18 One Old Country Road, Suite 347,
Carle Place, New York 11514,
19 Ph. (716) 873-9550,
Attorney for the Plaintiff.
20
DAMON & MOREY, P.C.,
21 BY: RANDOLPH C. OPPENHEIMER, ESQ.,
Avant Building,
22 200 Delaware Avenue, Suite 1200,
Buffalo, New York 14202-2150,
23 Ph. (716) 856-5500,
Attorney for the Defendant,
24 Charles P. Ewing.

25

DePAOLO-CROSBY REPORTING SERVICES, INC .


........ - - -- - 110 FranKITn-sTr-eet; -suTfe -6or;-8lif:faTCi_;_ N'ew 'io-rk___14 2 o 2
716-853-5544
Case 17-38, Document 30, 02/17/2017, 1975447, Page129 of 158

487
Case 1:12-cv-00236-MAT-HKS Document 63-1 Filed 08/30/14 Page 71of346

ERIC T. SCHNEIDERMAN,
NEW YORK STATE ATTORl~EY GE~"'ERAL,
BY: DAVID J. SLEIGHT, ESQ. 1
Assistant County Attorney,
95 Franklin Street, Suite 1634,
Buffalo, New York 14202
4 Ph . ( 716 ) 8 5 8 - 2 2 4 3
Attorney for the State of New
5 York and the Defendant, Makau Mutua.
6

10

11

12
13

17

18
19
20
21
22
23
24
2 .:Jr::

DePAOLO-CROSBY REPORTING SERVICES


170 F'i::ariJ~TI'fi"""'"'Y.rt"f eet".~ S'li It""C ---"-''6-01--~-- - '"fhi:Cf aI"O ; 2
716-853-5544

OOOOJU~
Case 17-38, Document 30, 02/17/2017, 1975447, Page130 of 158

Case 17-38, Document 22, 02/01/2017, 1961823, Page300 of 487

Case 1:12-cv-00236-MAT-HKS Document 63-1 Filed 08/30/14 Page 77 of 346

M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 30

1 law or in that general subject area. But that was not


2 a clinic.
3 Q. Do you remember being explained at the meeting that the
4 ABA's requirement of 405(c) status?
5 A. Could you ask that question again?
6 Q. In other words, do you remember any discussions of the
7 405, the ABA 405(c) status and the applications to Jeff
8 Malkan?
9 MR. OPPENHEIMER: Form.
10 THE WITNESS: No.
11

12 BY MR. ARBEIT:
13 Q. Do you remember it being mentioned at all?
14 A. I can't recall.
15 Q. Could you tell me what else was discussed at the
16 meeting?
17 A. So the meeting, you know, was chaired by Sue Mangold
18 who then was the Vice Dean for Academics because the
19 Dean, Dean Olsen was away on a trip. And Professor
20 Mangold gave us -- opened the meeting and said that we
21 were there to discuss -- to consider this question
22 before us.
23 Q. Can you specify what the question she said?
24 A. The question was whether the faculty would consider
25 would discuss the question of Mr. Malkan's promotion

DeJ?~Q~Q:C:_~Q~~-! ~-~Q~:!';T;~~t $~~y~i;:::~$.1. .. J~C::: . ~. . . . . .


1i6 Franklin Street, Suite 601, Buffalo, New York 14202
716-853-5544
OOOOJOJ
Case 17-38, Document 30, 02/17/2017, 1975447, Page131 of 158

487
Case 1:12-cv-00236-MAT-HKS Document 63-1 Filed 08/30/14 Page 78 of 346

M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 31

1 te Clinical Professor to Full Clinical


2 Professor. And, you know, immediately that -- she
3 raised that issue, there were ections various

5 Q. Including yourself?

6 A. Including myself, who questioned -- who wanted to


7 discuss actually the -- Mr. Malkan's directorship of
8 the Legal Research and Writ program first. And then
secondly said -- you know, questioned the

appropriateness of the matter of his being considered

for promotion before that body. In other words, you

know, some faculty members including myself felt that


13 that is not a matter we should have considered.
14 Q. So in other words, you're saying that the faculty said

well, you shouldn't even vote on whether or not to


16 appoint him to a Clinical Professor position?

17 A. Exactly, exactly correct.


18 Q. And that was at the time you felt that -- was

19 that'?

20 A. Well, because we felt that his initial appointmem:. to

21 the line of Associate Clinical Professor was in error


22 and we felt that we could not compound that error by

23 a second error. In other words, we fel

that his initial position was invalid, so how could he

25 be to another -- to a position on the basis of

DePAOLO-CROSBY REPORTING SERVICES, INC.


170 2
'
716-853-5544
Case 17-38, Document 30, 02/17/2017, 1975447, Page132 of 158

17-38, Document 22, 02/01/2017, 1961823, Page302 of 487


Case 1:12-cv-00236~MAT-HKS Document 63-1 Filed 08/30/14 Page 79 of 346

M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 32

1 the first position which was void?


2 Q. Do you know who else felt similar to you about that?
3 A. I think there were many people who felt that way. I
4 think Lucinda Finley felt that way. I think that James
5 Gardner felt that way. I think many people felt that
6 way. I don't have the list in my head right now.
7 Q. And

8 A. But I think those two felt that way.


9 Q. Do you know if they felt that way before the meeting?
10 A. They had circulated, both of them had circulated a
11 letter or letters, each a letter, you know, on
12 Mr. Malkan, questioning his appropriateness as Director
13 and I think even questioning whether he should be
14 promoted. I can't recall exactly the language of those
15 letters.
16 Q. And so I think we were at the point that you were
17 questioning whether or not he should be promoted to
18 Clinical Professor, wha~ happened?
19 A. So the discussion became very heated almost irmnediately

20 and --
21 Q. I just want to make sure, about whether or not he
22 should be promoted to Clinical Professor because he
23 wasn't in the clinic?
24 A. Exactly.
25 Q. Okay.

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1 A. And secondly, whether he was the appropriate person to


2 be Director of the program. And the meeting then
3 focused for the balance of the discussion in the
4 meeting, focused almost entirely on that question as to
5 whether he was the appropriate person to lead the
6 program. And I would say that there was a near
7 consensus by those who spoke that he should not lead
8 the program. In other words, the meeting turned into a
9 meeting to discuss, if you will, both the program and
10 its -- the bad shape in which the program was.
11 Q. When you say near consensus --
12 MR. OPPENHEIMER: Counsel, I'm not sure that the
13 witness was finished with his answer.
14 MR. ARBEIT: I'm sorry.
15
16 BY MR. ARBEIT:
17 Q. Did I cut you off?
18 MR. SLEIGHT: Were you finished?
19 THE WITNESS: No, I was unfinished.
20
21 BY MR. ARBEIT:
22 Q. Oh, I apologize.
23 A. Just to say that there was a near consensus that he
24 was -- he really was a terrible Director of the program
25 and that he should not continue to run that program,

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that the program was a damn shame and that the -=l:-1
should seize the program and recreate it without him.

Q. Okay, and then I was ng to ask, so when you say near

4 consensus

5 A. Yes.

~I
Q. -- can you tell me who didn't share in that view?
A. I can't remember, but I just recall there was this

8 overwhelming sort of sentiment in the room that he was

9 net the right person to run the program.

10 Q. When you say -- I'm trying to like quantify, was there

11 a vote on that when you say overwhelming consensus?


12 A. Well, first of all, there were very few people at the

13 meeting and I think some of us wondered whether there

14 was even a quorum for the meeting.

1sl Q_ Let me stop you there. So how many people do you

16 remember being at the meeting?

17 A. I think around 11.

18 Q_ 11 people there, okay.

19 A. I don't think it was more than 11.

20 Q. There's 1, 2, 3, 4, 5, 6, 7, 8 people in this room, you


21 just remember about three more people?

22 A. Exactly.

23 Q. Okay.

24 A. Exactly.
25 Q. And did you raise that as an issue even at the

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1 inning of the meeting?

2 lo.. I can't remember exactly, but I think someone did raise


3 It was a very chaotic
4 Q. It was a what?

5 A. Chaotic. It became a very chaotic and heated mee


6 Q. All right. So out of the 11 people there, how many
7 people were would you say were in -- agreed with
8 that sentiment that you just shared?

9 A. I would say virtually everyone.


1.0 Q. And virtually everyone agreed that the legal research

11 and writing program was terrible?


12 A. It was terrible. I mean, I think that this was a fact

that was known throughout the law school and which had
been the subject of discussion faculty members both
in the corridors of the law school and in faculty

16 meetings.
17 Q. And did anything was there any discussion between

like the difference between the structure of the


program versus the quality of the program?

A. There was discussiori of the entire program.


2 Q. Okay.

22 A. Both structure of the program, instruction in the

program, the curriculum in the program, the teachers

the program, the di.recto of the program. We had a

2 full scale discussion of the program.

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1 Q. Let me ask, was there anything positive?


2 A. No.

3 Q. No?
4 A. No, there really wasn't.
5 Q. By anybody?
6 A. No, there really wasn't. It was a very heated meeting,
7 but I think people, you know, I should say that you

8 know, people were concerned that the program was not

9 doing what it should have done for our students, that


10 was the overwhelming concern of the faculty members. I

11 think that, you know -- and people felt that Jeff

12 should be removed from that position so that we could

13 find someone who could, you know, lead a good program


14 for our students.
15 Q. So then I guess what happened at the meeting after, I

16 guess, this heated discussion?

17 A. So the discussion continued and at some point, I think


18 people began to feel that although we felt that Jeff
19 should be removed, that we should not simply throw him

20 out onto the street immediately, that we should give

21 him a year, a terminal year and then instruct or ask


22 the Dean to form a faculty coITu~ittee to study the

23 program and come back with recommendations of how the


24 program could be recreated.

25 Q. Let me ask, I mean, the committee couldn't throw him

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1 out in the street, I think, even if they wanted to,


2 could they?
3 A. You mean the faculty meeting?
4 Q. The faculty meeting.
5 A. The faculty was going to recommend to the Dean that he
6 give Mr. Malkan a terminal one year appointment and
7 then establish a committee to study the program and
8 make recommendations for change.
9 Q. But I'm a little confused because I thought that the
10 appointment -- you said that the appointment for a
11 Director position was at-will for the Dean?
12 A. Yes. This does not mean that the faculty cannot
13 express their view to the Dean and we expressed our
14 view to the Dean very strongly on this one.
15 Q. So your view was to have him stay on for a full year?
16 A. Yes, as -- basically as a caretaker of the program
17 while we also look for another Director and he look for
18 another job elsewhere.
19 Q. And was -- this was voted on?
20 A. It was voted on.
21 Q. Okay. Was this communicated to the Dean?
22 A. I don ' t know.
23 Q. Okay.
24 A. We asked the current Dean, then Sue Mangold, to
25 communicate our resolution to the Dean .

. . . . . . . . P~J.?J\Q~9=~.I'Q$~X .. ~~R~:C~G .~-~'.BY.l:.C::'.13;_~,. ;tl'IC:: . ~


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1 Q. Do you know whether or not there was a process at that


2 time to look for a new Director?

3 A. As far as I know, the Dean never acted on our


4 resolution. As far as I know.

5 Q. And do you know whether or not Professor Malkan was


6 told that he should look for a new job somewhere
7 else?
8 A. I don't know.

9 Q. Do you think that's information that they would have


10 withheld from him?
11 MR. OPPENHEIMER: Objection.
12 THE WITNESS: I don't know.
13
14 BY MR. ARBEIT:

15 1 Q. Let me ask, what else happened at this meeting?

16 A. You know, so the vote that -- the vote was very close.
17 You know, I think it was

18 Q. Actually, can I stop you real quick? Can you tell me


19 the process for voting, like how did how do you

20 vote -- how did you go about voting for this issue?

21 A. So typically in these meetings which discuss whether


22 promotion you know, or tenure, the vote is by secret
23 ballot.

24 Q. Okay. Who -- but who makes -- who decides what to vote


25 on, did somebody make a motion?

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1 A. Someone did make a motion for us to vote on whether we


2 should give Jeff -- Mr. Malkan a terminal year.
3 Q. Who was that?
4 A. I can't recall who it was.

5 Q. Do you know if somebody had to second that motion?


6 IL Yes.
7 Q. And do you remember who that was?
8 A. I can't recall, but we did vote.

9 Q. You did vote?

~~1
A. Yeah.
ll Q~ All right, and do you rernember the outcorrte of that
vote?

13 A. Yeah, it was very close. Like I said, it was something


14 like 6 to 5 with maybe two abstentions. I can't
isl recall, something like that. Because I
16 someone asking whether a 6 to 5 vote with two

17 abstentions was an affirmative vote.

18 Q. Was an affirmative vote?


19 l.\. Yeah.
20 Q. To have him be able to stay?

21

221 Q. Do you remember who that was?

231 A can't recall who it was, but I remember the person

.~I
? Ll l who answered the question was the former President Bill
Greiner who said yes, it's an affirmative vote. But no

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1 one was real convinced that it was. The meet then

2 just broke down at that point and e left.


3 Q. So let me understand, so was challenging

4 whether or not it was an affirmative vote to Jeff

5 for another year?


6 A. Yes.

7 Q. Because people were so dissatisfied about how --


8 A. Yes, yes, and then Mr. Greiner say -- Professor Greiner
9 say that yes, it's an affirmative vote. I think there

10 was a desire by people to keep him for a year, let me

11 put it that way.

12 Q. And do you remember if this person that was contes

13 or challenging the vote, was that Professor Gardner?

14 A. I think many people would challenge the vote. I think

many people said is this an affirmative vote?

16 it was not just -- I can't recall who it was, but I

17 remember it was a chorus of ections as to whether

8 this was an affirmative vote.


1L 0:;/ Q. And this happened at the meeting itself?

20 A. Ycc.cs, yes.

21 Q. Okay.

22 A. Inunediate after the vote was announced,

23 there was a chorus of whether this was a yes or a no

241 vote.
2sl Q. Do you remember what, I guess, the person

r
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1 over the meeting said, she said that -- did she make a
2 ruling on it?

3 A. She made the ruling on it that it was an affirmative


4 vote, at which point there was a challenge to that and
5 then Professor Greiner said it should be, you know, by
6 Parliamentary Rules, it should be regarded as an
7 affirmative vote.
8 Q. And why is that, because

9 A. I think he said we don't count the abstentions against


10 the positive votes.

11 Q. Was that the practice of the committee?


12 A. I don't recall what the practice of the committee
13 was.

14 Q. Do you know if there was any further challenge of that


15 vote after the meeting?
16 A. I don't recall. Like I said, the meeting broke down at
17 that point and people felt terrible about the meeting.
18 It had been contentious and people simply walked away
19 after that point.

20 Q. Was there any other -- when you say walked away, what
21 did you do after that meeting?
22 A. The meeting broke up.

23 Q. Broke up and everybody went home?


24 A. I don't know where they went, but they left the room.
25 Q. Okay. Was there any faculty meetings after that

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1 meeting?
2 A. No, there was not.

3 Q. What happened in the discussion about the clinical


4 appointment?

5 A. It just never came up again. Like I said, the meeting


6 really was -- this issue was as to about the program
7 and as to whether he should continue to run the
8 program, ate up, you know everything in the meeting.

9 Q. And nobody mentioned anything about a vote on the


10 clinical

11 A. No.

12 Q. -- appointment?

13 A. Because the discussion about Mr. Malkan's


14 appropriateness as Director of the program was very
15 1 heated, was very -- was lengthy and contentious
16 discussion and it sucked the oxygen out of any other

17 issue that could have been discussed. We did not, you

18 know, focus on the second -- you know, on the other

19 question at all. The discussion really just focused on


20 whether he was an appropriate Director of the program
21 and whether he should continue to be in the building.

22 Q. Was there any vote on whether maybe the promotion


23 should be denied?
24 A. There was no -- there was not. And just so to clarify

25 one thing, there was only one vote, the vote I talked

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l about.

2 Q. Okay.

3 A. Yeah. There was only one vote, which was to extend him

4. for another year as Director of the program.

5 Q. And you remember this clearly'?

6 A. I remember this very cl

7 Q. Have you had a chance to discuss this meeting with


8 anybody?

9 A. I mean, I discussed the meeting with my lawyers before

10 the Labor Court in Albany when I testified there.

11 Q. Okay. What about anybody at the law school?


12 MR. OPPENHEIMER: Form.

13

14 BY MR. ARBEIT:

151 Q. uid you discuss the meeting and what occurred at the

meeting after with anybody at the law school?


' 61
1 '7 A. Probably. I mean, you know, it was such a contentious

sl meeting, probably people talked about it for I

19 can't imagine that people didn't.

20 Q. And let me ask you, did you discuss with them the vote

21 or the outcome?
22 A. No, because I think, I think that we felt that we had

done the humane th which was to ve Mr. Malkan an

additional year. So that issue was settled. And I

think fel , you know, that was the

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1 thing to do, not to throw him out into the street. I

2 personally did not vote to extend him for another year.


3 I voted to deny him that extension.

4 Q. Okay. Do you know who else voted to deny him the one
5 year extension?

6 A. I don't know, it's a secret ballot.


7 Q. Did you talk to anybody else?
8 A. No, I didn't.
9 Q. What was your understanding I guess in -- well, so you

10 extended him for -- when you say extended him for a

11 year, what time period was that, was your

12 understanding, what time period was the year from?


13 A. It was just the academic year, which is September to
14 June.

1s 1 Q. Of the following year?


16 A. Yeah, whatever it was, we were going to extend him for
17 the following academic year, for one year.

18 Q. So this, the meeting occurred in April 2006?


19 A. Yeah. So it would have been for the following academic

20 year which would have began that coming -- that

21 September.
22 Q. '06 to '07?
23 A. Yeah, or that August, yeah.
24 Q. So let me ask in '07 to '08, what was your
25 understanding of Professor Malkan's position at the law

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1 school?

2 A. My understanding was that he was in a terminal year.


3 Q. Sorry, maybe I didn't understand that. So in -- so in

4 '06 to '07 you thought it was his last year?


5 LT\. Whatever year --- I can't remember now, but whatever

6 year it was, we were going to give him one additional


7 year to get his house in order.

8 Q. That's what I'm trying to clarify. So the mee was


9 in April '06?

10! A. Yeah, so it would have been the September '06 to ,June

11 '07.
12 Q. Okay.
13 A. Yeah.

14 Q. So during that time, you understood that that would be


151 his last year?

16 A. Exactly, correct.
17 Q. What was your understanding of the Legal Research and
18 Writing program during that year?
19 A. My understanding was that the Dean was going to do as

20 we requested, appoint a corrunittee to reform the


program.

Q. And I think you testified that that didn't ?

A. Yes.

Q. And what was your sentiment about the Legal Research

25 and Wr ting program dur that year, had it

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11 improved?

A. No.

3 Q. Do you know if others shared that: same sentiment?

4 A. I think universally, yes.

5 Q. So is it your testimony that during that time there

6 were no improvements in the Legal Research and Writing

program?

A. Nothing.

Q. So what was your understanding, I guess -- he was still

there in 2007, 2008; correct?

IL Yes.

12 Q. So what was your understanding of his position in 2007,

13 2008?
14 A. You know, you must understand that I was not

15 very

16 academic. I have my own l.ife. So my job was not to

l7 run the 1aw school. And so I didn't -- these matters

l8 could not -- they were not always in front of me in

19 terms of my consciousness.

20 Q. Okay. But so you didn't know anything about his

21 status?

22 A. No, because you know, I assumed that the Dean

23 would do what \~1e asked and I went on with my

24 busJ_nes.s,,

25 O. But did you know in the of the 2007 school

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1 that he was still there as Director?


2 A. I saw him there.
Q. And you know that didn't hire a new Director?
4 A. Yes.

5 Q. You knew that they weren't in the process of a


new Director?
7 A. I don't know. I didn't know.

8 Q. You didn't know?


9 A. No.

lOl Q. Do they have to get authorization from the faculty to


11 hire

12 A. No. Like I said, you know, this is not an --

J3 Mr. Malkan's situation in the law school really wasn't

14 something that kept me awake at night. So I did not


15! and work and dream about his status, thaL was not
16 my concern. Like I said, I had a busy calendar as an

17 academic. I travel a lot both local and

JB internationally, so I, I have a lot of things to do.

19 Q. Well, let me ask you, I guess, because i t sounds like

20 there were other people that were concerned with the

21 Legal Research and Writing program?

A. Yes.

Q. Do you remember other rais the J~SSUC of him

rem a Director dur that period?


25 A I think people -- I can't recall exactly. Real y T

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2 BY MR. ARBEIT:
3 Q. Document request Number 20.
4 A. 20.

5 Q. But first let me ask you, what happens to dossiers that


6 are prepared for a clinical appointment?
7 A. Dossiers that are prepared are provided for the faculty
8 in an envelope to every faculty member who's able to
9 vote on that issue in an envelope marked
10 confidential.

11 Q. Do you know what happens --


12 A. Faculty -- I was not finished. Faculty then bring
13 those dossiers to the meeting in question where the
14 matter is discussed, then faculty are required to turn

15 1 over those documents back to the Dean or the presiding


16 person at that meeting who then goes and destroys most

17 of the copies save for those few ones that the Dean
18 keeps in his office.
19 Q. So is it correct that the Dean does keep some copies of
20 the dossiers that are prepared?
21 A. It's an essential personnel record, yeah.
22 Q. Do you know whether or not any dossiers that were
23 prepared for the Promotion and Tenure Committee meeting
24 for Professor Malkan exist?
25 A. They apparently disappeared into thin air .

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l Q. Do you know when you first looked for them?


2 A. Yes, I looked for them when I was reviewing the

3 personnel files when I came in and I did not see them.

4 I didn't see his dossier and his dossier was not the
5 one that was missing. The dossiers of Sarah

61 Faherty and Lauren Breen were also missing.


7 Q. Pmd what positions did they have?

8 A. They taught in the clinics. They were real

9 clinicians.

10 Q. So they were clinical professors?


11 1 A. No, they were clinicians, unlike Mr. Malkan.

12 Q. So their state title was clinicians?


13 A. They -- so they were instructional facu who

14 in the clinics but their titles were irregular.

15 1 Q. Okay.

16 A. So they did not have the title, the titles of Associate

17 Clinical Professor or Clinical Professor, but they

18 taught in the clinics. And one of the things that I

19 did when I became Dean was to try to make that regular,

20 to regularize their station in the law school. But

21 when I tried to do that, I went to look for the

dossiers and the dossiers had disappeared from the

archives.

24 Q. So do you know whether or not


or if you want to say just iven Full Cl ca1

,
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1 Professor status?

2 A. There was a rnee~ing that was conducted, actually I was

3 away out of the country at the time. ::: was in Nairobi,

4 Kenya and a meeting was called of the Clinical P and T

5 Committee-- no, of the P and T Committee. This is the


61 Promotion and Tenure committee, not the Clinical P and

7 T Committee. And that meeting decided that they would

8 appoint Ms. Faherty and Ms. Breen to Clinical Associate

9 Professors and then promote them in the same meet to

10 Full Professors. First of all, that particular body, P

11 and T Committee does not have the power to do that-


12 And secondly, you cannot appointment people to those

l3 positions without doing a search, a national .searc'.1.

141 But that's what they did. So when I became Dean, the

1511 process of their full appointment had not been

16 completed. The previous Vice Dean for Academics,

17 Professor Susan Sue Mangold had drafted a letter,

18 sent to University Human Resources Office as that

19 that office in those two appointments as having

20 been done. Those two letters were then sent back to me

21 by Human Resources and Human Resources asked there

22 was no dossier accompanying -- dossiers


the two letters, Number One. And Number Two, there

24 was no s from the Provost those

I
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M. MUTUA -- BY MR. J.\RBEIT -- 12/19/2013 17 5

1 led Professor Mangold and told her that


2 the appointments were irregular and null and vold and
3 that could not proceed, that if Ms. Breen and
4 Ms. Faherty wanted to become Clinical Professors,

5 would have to apply for those positions, if those


6 positions were advertised by the law school.

7 Q. Let me just understand, I think you said when


81 somebody's promoted to Clinical Professor, is the

9 dossier and the letter of appointment are sent to the


10 Provost office?

11 A. The Provost -- the Dean -- so the appointment is a


12 recommendation to the Dean. The Dean can then write a

13 recommendation to the Provost, recommending that: the


14 Provost either appointment that person or not. The

Dean does not have to agree with the

16 recommendation, you know. But the Dean in forwarding


1 '7
...!... J the recommendation to the Provost for or against must

18 attach the dossier for the Provost.

19 Q. l\nd the Jetter of


20 A. And the letter of endorsement. Those steps had not

21 been taken.

22 Q. And if there~s an irregularity, H it's missing a

dossier, it ected back?

PL Well, it not just an A.s I sa1.ct

before, it was an illegal The initial meet in

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1 which they were appointed and promoted was null and


2 void. That action will not be taken in that meeting.
3 Secondly someone obviously removed the dossiers from
4 the Dean's office. Now I leave it to you to speculate
5 as to who that person is. I have no idea who it was.
6 The same happened to Mr. Malkan's dossier, I don't know
7 where it is. I don't know who moved the dossier.
8 Q. Do you remember receiving a dossier for him?
9 A. No.
10 Q. What are Legal Research and Writing instructors

11 referred to as within the law school by students, do


12 they have like a different in-house title?
13 A. It just depends on the students. Some people call them
14 by their first names.
151 Q. Let me -- I think in other words, I think there were
16 instructors. I'm not sure, are they still instructors,
17 that's their position?
18 A. They're lecturers.
19 Q. Lecturers, okay. Would a student call them a Lecturer
20 Smith or do they have a separate in-house title?
21 A. You know, in-house title would have to be given to them
22 by the Dean or by the faculty. Otherwise it's not a
23 title.
24 Q. If I went on the website, would it say Lecturer

25 Smith?

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 177

1 A. Yes ..

2 Q. Or would it have something else?


3 A. It would say Lecturers in Law.
4 Q. Lecturers in Law?
5 A. Yeah.
6 Q. That's their title online?
7 A. I believe that's correct.
8 Q. And they were never referred to as Professors or
9 Assistant Professors of law?
10 A. Referred to by who?
11 Q. Students or anybody?
12 A. I never refer to them as Professors.
13 Q. Do you know of anybody doing that?
14 A. I don't know.
isl Q. I think it's Assistant Professor of Legal Skills?
16 A. That was -- that was a title that was used before.
17 It's not used now.
18 Q. What do you mean?
19 A. You know, they're not Assistant Professors of Legal
20 Skills. That is not what we called them.
21 Q. I'm not sure if I asked you what you called them now.
22 I asked was there a title that they had --
23 A. Oh, I mean, I could probably go back into archives and
24 come up with all kinds of names for them before.
25 Q. So in other words, you know that there are sometimes

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 178

1 or positions that people have and ire

2 to differently than their ac~ual title?


A. The term Professor has a specific meaning in a law

4 school or a university. It has a specific It

51 is not simply a title that you throw around.


I
6l Q. But it appears that titles were thrown around?

71 MR. SLEIGHT: Form.

8 MR. OPPENHEIMER: Form.

10 BY MR. ARBEIT:

11 Q. Prior to you becoming Dean?


12 A. Like I said before, to become a Professor of Law is a

13 very arduous and long process, all right? So it is

14 not -- so I don't know what you are referring to. I'm


i
15 just telling you that the title Professor of Law,

16 whether Associate Professor or Full Professor of Law,

these have specific legal meaning in law school.

~~I Q. What about Assistant Professor?

is! A. We don't have such a title, we don't.


201 Q. So f somebody just gave that to somebody, would

21 that --

22 A. It would be an illegal title.

23 (Proposed Exhibit Number 40 marked for

24 identification.)

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 179

1 BY MR. ARBEIT:
2 Q. Showing you Plaintiff's Exhibit 40.
3 A. Um-hnmt.

4 Q. Again, this is I believe this is not all the pages


5 to this document, but it appears to be a report on the
6 University of Buffalo Law School by the American Bar
7 Association dated April 8 through 11, 2009. Do you
8 recognize this document?
9 A. Yes.

10 Q. What is this, part of it, excerpt of the document?


11 MR. OPPENHEIMER: Just noting my objection to the
12 use of a partial document.
13 THE WITNESS: This is simply a report that site
14 visitors prepare. After they do the sabbatical visit
15 for reaccreditation.
16
17 BY MR. ARBEIT:
18 Q. And can I ask you to turn to Page 25 of this
19 document?
20 A. Um-hmm.

21 Q. And if you go 1, 2, 3 paragraphs down where it starts

22 "because the policy was only adopted in 2009, there's


23 been no experience in applying it." Really, the second
24 sentence is the one I'm referring to. Are you there
25 where I am?

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 180

1 A. Um-hmm.

2 Q. It says, "Under a previously exist icy, no

3 Clinical Assistant Associate Professor nor any Clinical

4 Professor appointed to a position of an indefinitely


5 renewable long term contract has ever been denied
reappointment." Is that statement true?
MR. SLEIGHT: Form.

8 THE WITNESS: I don't know. I have no way of

9 knowing.

10
11 BY MR. ARBEIT:
12 Q. Well, let me ask, if Professor Malkan was a Clinical
13 Professor, is it not correct that he was deni.ed
14 reappointment?

THE WITNESS: I don't think that -- Mr. Malkan was

1.7 not a Clinical Professor and therefore was not denied

18 an appointment.
I
191

20 BY MR. ARBEIT:
21 Q. But within the university, you will agree he had the
22 position of Clinical Professor?

23 A. He didn't.

24 Q. He didn't have an of Clinical Profess

25 n. He did not.

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 18

1 Q. Did the President ever revoke that appointment?

2 MR. SLEIGHT: Form.

3 THE WITNESS: You would have to ask the President,

4 but I can tell you that, you know, just like I said

5 before, you cannot have a Professor of Medicine in law

6 school. I mean, the titles don't make sense. It ust


7 would simply not make sense. So what I'm trying to say

8 basically is that Mr. Malkan was an imposter. He was

9 posing as a Clinical Professor which he was not. He

10 was an imposter.

11

12 BY MR. ARBEIT:

13 Q. Let me just get this correct, did the -- under his pay
14 and title with the University of Buffalo, it has him as

you understood it as a Clinical Professor?


16 A. I didn't understand it as a Clinical Professor. I

17 understand him to be an imposter posing as a Clinical

Professor.
Q. You understand he was still getting paid by the

20 university?

211 A. Yes, he was, but imposters can get


22\ Q. Did you go to the Provost and have the discussion about
23 h'
l~im an imposter?
24 I non renewed, this is non renewed

him because he was an

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M. MUTUA -- BY MR. ARBEIT -- 12/19/2013 182

1 Q. Did you put that in the letter?


2 A. What?

3 Q. That he was an imposter?


4 A. No, I -- you know, I'm responding to your question.
5 You've seen the paperwork non renewing him. I'm just
6 putting it in a language that is readily understood,
7 that he was in a position that he wasn't entitled to be
8 in a position and acting as a Clinical Professor when
9 he was not teaching in the clinics. That's an
10 impostor.
11 Q. And you included that in your notice of non renewal?
12 A. No, I did not, but I'm just trying to explain to you
13 what an imposter is. It's a person who holds himself
14 out as something that he is not.
15 Q. I understand what an imposter is.
16 A. Yes, yes.
17 MR. SLEIGHT: Why don't we go off the record?
18 (Brief pause in proceedings.)
19
20 BY MR. ARBEIT:
21 Q. I'm not going to be too much longer, but I just want to
22 ask you if you remember some issue with the ABA and
23 your appointment, I think it's Jim Wooten to the
24 position of Director of the Library and maybe you can
25 clarify exactly what that issue was?

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