Judge recommends lawsuit against former UB Law School Dean Makau Mutua be dismissed

Former law professor Jeffrey Malkan to appeal dismissal


A federal judge has recommended dismissing a former UB law professor’s wrongful termination suit against former Law School Dean Makau Mutua.

The lawsuit, filed by Jeffrey Malkan in 2011, alleged that Mutua violated Malkan’s due process rights when the former dean fired him in 2009. U.S. Magistrate Judge H. Kenneth Schroeder also granted sanctions against Malkan and his attorney for claiming Mutua committed perjury in the case.

Malkan, who says he hasn’t been given a fair trial, will appeal the dismissal. He has 14 days to do so.

“I have to believe that I will eventually get a fair hearing,” Malkan said in an email. “The Magistrate’s decision to prevent my case from being heard on a record tainted by fraud and perjury is yet another miscarriage of justice.”

U.S. District Judge Richard J. Arcara must now approve Schroeder’s recommendation to dismiss the case. Malkan said district judges usually write an opinion on the case within two to three months. He said he doesn’t believe Arcara will endorse Schroeder’s ruling.

Mutua, who resigned amid the lawsuit in September of 2014, said in a statement that he was pleased with the magistrate’s decision.

“I am glad that the court not only affirmed the falsity of the charges, but has also sanctioned Mr. Malkan and his lawyer for their reckless behavior,” Mutua said.

The lawsuit stems from Mutua’s firing of Malkan despite Malkan having signed a clinical professor contract in November of 2006 that stated he could only be fired for cause in accordance with the law school accreditation standard.

Schroeder recommended sanctions against Malkan and his former attorney Rick Ostrove for alleging Mutua committed perjury. Schroeder said in his decision that there was no evidence that Mutua testified falsely and that Malkan and Ostrove made the allegations to harass Mutua, needlessly increase the cost of the litigation and burden the court.

Malkan claims Mutua lied under oath when the dean testified at a Public Employee Relations Boarding hearing that a vote to promote Malkan to full clinical professor in 2006 was actually just a vote to retain Malkan as a director of the Research and Writing program. Several faculty members have testified the vote to make Malkan a clinical professor did take place.

“I don’t know how the Magistrate concluded that there wasn’t sufficient evidence of Makau Mutua’s perjury,” Malkan said.

Schroeder fined Ostrove $10,000 for pursuing the perjury allegations against Mutua. Ostrove will object the sanctions.

Schroeder, who graduated from the UB Law School, also denied Malkan’s motion for sanctions against Mutua and David Sleight, the assistant attorney general that has represented Mutua.

In a separate ruling on Wednesday, the New York State Supreme Court also dismissed Malkan’s defamation suit against Interim Law School Dean James Gardner. The defamation suit came after UB banned Malkan from campus in October for referencing mass shootings in emails to faculty.

University Police determined Malkan did not present a threat to campus, but UB officials decided to ban Malkan anyway, saying Malkan’s emails frightened faculty and incited worry the former professor could cause harm to individuals at the university.

Malkan said he only referenced the shootings because Mutua and Gardner had previously spread rumors that he could be a mass shooter one day.

“We could not be happier with these results,” Gardner said in a statement. “It is no surprise that Mr. Malkan, having filed three different losing lawsuits against the former dean, finally went ahead and filed a losing suit against me. I am gratified that the court recognized that this action, like its predecessors, is completely devoid of merit.”

Malkan has been without work since his firing, which he says is due to Mutua’s refusal to write him a letter of recommendation, which has consequently blacklisted him in the profession, he said. He said he now represents himself in the lawsuit because he can no longer afford an attorney.

Mutua resigned amid the lawsuit, perjury allegations and divide among law school faculty about his leadership in September of 2014. He has been on sabbatical for almost a year.

Tom Dinki is the editor in chief and can be reached at tom.dinki@ubspectrum.com. Follow him on Twitter at @tomdinki.