O'Neill v. N.Y. Univ.

• Decision Date: 08 May 2012
• Parties: David O'NEILL, Plaintiff–Petitioner–Appellant, v. NEW YORK UNIVERSITY, et al., Defendants–Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 199

944 N.Y.S.2d 503

279 Ed. Law Rep. 1096

2012 N.Y. Slip Op. 03570

David O'NEILL, Plaintiff–Petitioner–Appellant,

v.NEW YORK UNIVERSITY, et al., Defendants–Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

May 8, 2012.

Vladeck, Waldman, Elias & Engelhard, P.C., New York (Debra L. Raskin and Liane T. Rice of counsel), for appellant.

Seyfarth Shaw LLP, New York (Edward Cerasia II and Aaron Warshaw of counsel), for respondents.

RICHARD T. ANDRIAS, J.P., JOHN W. SWEENY, JR., KARLA MOSKOWITZ, DIANNE T. RENWICK, HELEN E. FREEDMAN, JJ.

MOSKOWITZ, J.

In this appeal, plaintiff-petitioner (petitioner), a research scientist, alleges that he reported suspected research misconduct of a colleague to his superiors who, in turn, fired him in retaliation. The motion court denied his petition to vacate respondents' termination of his employment and dismissed this hybrid plenary action and CPLR Article 78 proceeding pursuant to CPLR 3211(a)(1) and (7). We unanimously modify to reinstate the causes of action based on retaliation and failure to follow disciplinary procedures.

According to the complaint, in July 2002, respondents New York University, NYU Hospitals Center and NYU Langone Medical Center (NYU) hired petitioner Dr. David O'Neill as a non-tenured, full-time faculty member, with an annual starting salary of $140,000 pursuant to an offer letter. NYU's Faculty Handbook provided that appointment to non-tenured faculty positions “shall be for a definite period of time, not exceeding one academic year unless otherwise specified.”

NYU renewed petitioner's appointment annually. As recently as February 23, 2010, NYU confirmed his appointment for the 2009–2010 academic year from September 1, 2009 through August 31, 2010 in a renewal letter. The offer letter provided that petitioner's appointment with NYU was “contingent upon continued employment in good standing with the [NYU] School of Medicine and compliance with all University and School of Medicine rules and regulations and other contractual obligations.”

These rules and regulations included NYU's Faculty Handbook, containing its Code of Ethical Conduct (the NYU Code of Ethics) and policies related to research misconduct (the Research Misconduct Policies), and the NYU Langone Medical Center Code of Conduct (NYU Code of Conduct), containing its Non–Intimidation/Non–Retaliation Policy (the Non–Retaliation Policy).

The NYU Code of Ethics states that “[e]ach member of the University is expected to uphold the standards of [NYU] and to report suspected violations of the Code or any other apparent irregularity.” The Research Misconduct Policies define “research misconduct” as including “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.” The NYU Code of Conduct elucidates as follows: “Every member of the Medical Center has an obligation to report situations or activities that are-or even seem to be-violations of the Code. If something concerns you but you are not sure whether it is a violation of the Code, you must raise the concern and ask for advice.” The Non–Retaliation Policy states that “[t]he Medical Center promises that there will be no retaliation against you if you raise concerns or questions about misconduct or report violations of this Code.”

The Faculty Handbook also contains NYU's disciplinary policies that include its General Disciplinary Regulations Applicable to both Tenured and Non–Tenured Faculty Members and the Faculty Grievance Procedures. The Disciplinary Regulations apply“where a question arises concerning an alleged violation by any member of the faculty of a rule or regulation of [NYU]” and specify whether the dean or a faculty committee addresses each question. The Grievance Procedures provide a mechanism for NYU faculty members to “seek redress of their grievances.”

Petitioner's appointment with NYU included his duties as Assistant Director of the Vaccine/Cell Manipulation Core Laboratory for the NYU Cancer Institute or the Vaccine Lab. His supervisor was Dr. Nina Bhardwaj. She reported to Dr. William Carroll, the Director of the Cancer Institute. In 2004 and 2005, petitioner oversaw the construction of the Vaccine Lab. The lab's first major project was a clinical trial, that Bhardwaj designed, comparing a new and relatively expensive “dentritic cell” vaccine for malignant melanoma (skin cancer) with an inexpensive, decades-old mineral oil “Montanide” vaccine. The research team included petitioner and Bhardwaj as well as other staff members. Bhardwaj was the co-inventor and patent holder of the dendritic cell vaccine. The clinical trial also required the research team to write and submit a research paper to a scientific journal. Bhardwaj named petitioner as lead author of the paper.

It is undisputed that the clinical trial results showed that the dendritic cell vaccine was less effective than the Montanide vaccine. Throughout the clinical trial and for months thereafter, the research team exchanged e-mails and letters and held conferences on the clinical study. During this time, petitioner believed that Bhardwaj was attempting to shape the written and oral presentation of the clinical trial results in an unethical manner to downplay and distort the negative findings about the dendritic cell vaccine.

In March 2009, the American Society of Clinical Oncology (ASCO) invited petitioner to present the results of the clinical trial at its June 2009 meeting. Although ASCO's rules require that the lead author present, Bhardwaj demanded that she present. Despite this, petitioner presented. Carroll thereafter recommended petitioner for an additional appointment and praised his work in the Vaccine Lab.

By August 2009, petitioner had drafted the research paper. Bhardwaj reviewed the paper and altered its findings to the extent of allegedly eliminating some raw data and supplying a different statistical analysis to minimize the differing performance results between the two vaccines. Petitioner believed that Bhardwaj's actions constituted research misconduct. Thus, he e-mailed Carroll and the co-authors of the research paper, stating that the new analyses were “flawed and misleading and therefore invalid.”

On October 29, 2009, in a meeting with Carroll and Lauren Hackett, an NYU administrator, petitioner distributed and read aloud a prepared statement that outlined his concerns over Bhardwaj's actions. Petitioner asserted that during this time, the promotion his supervisors had recommended a year earlier had stalled. On November 19, 2009, in another meeting with Hackett, Carroll handed petitioner a letter, stating that petitioner's “lingering ... anger” impeded progress in the Vaccine Lab. Carroll cited petitioner's concerns over the research paper's new analyses as one example of a barrier to progress. The letter warned that petitioner's “[f]ailure to immediately rectify and sustain an acceptable level of behavior may lead to further disciplinary action including termination of [his] employment.”

Petitioner typically arranged tours of the Vaccine Lab for outside visitors. However, in April, 2010, Bhardwaj arranged a tour. During the tour, petitioner intervened and took over from Bhardwaj. Petitioner then e-mailed Bhardwaj, advising that she first contact him with regard to any future site visits. On April 22, 2010, Carroll learned of petitioner's e-mail and telephoned him, stating that Bhardwaj was not obligated to pre-arrange lab site visits with him. The conversation became heated. Petitioner acknowledged that he intermittently raised his voice but did so to keep from being interrupted. He asserted that the only time he raised his voice to Carroll was during this brief telephone call.

On April 23, 2010, petitioner met with Associate Dean David Levy and continued to press his concerns about Bhardwaj's actions and what he perceived as Carroll's retaliation. Levy advised petitioner to consult Dr. Steven Abramson, Vice Dean for Faculty and Academic Affairs, to file a grievance.

On the morning of May 3, 2010, petitioner requested an appointment with Abramson to begin the grievance process. That afternoon, Carroll called petitioner to a meeting and handed him a termination letter. The termination letter, dated April 25, 2010, dismissed petitioner, “effective immediately,” for alleged “unprofessional behavior.” The cited behavior was that, during the April 22 telephone call with Carroll, petitioner's “tone became very argumentative” and his “voice rose in anger.”

On May 7, 2010, petitioner met with Abramson and requested to appeal his termination and file a grievance. Petitioner reiteratedhis concerns regarding Bhardwaj, Carroll's retaliation and NYU's failure to follow its disciplinary policies. Petitioner then retained counsel. Thereafter, Dr. Reginald Odom, NYU's Vice President for Medical Center Employee and Labor Relations, periodically responded to counsel's e-mails and telephone calls. However, on July 13, 2010, Odom advised petitioner's counsel that NYU would not conduct an investigation or appeal, and that NYU maintained its termination decision. In August 2010, petitioner commenced this hybrid plenary action/Article 78 proceeding by filing a petition, summons and verified complaint. He asserted five causes of action: (1) breach of contract by retaliation for reporting research misconduct; (2) breach of contract by failure to follow disciplinary policies; (3) defamation; (4) arbitrary, capricious and unlawful actions contrary to the ethical conduct policies; and (5) arbitrary, capricious and unlawful actions contrary to the disciplinary policies.

In October 2010, NYU moved to dismiss the petition and complaint pursuant to CPLR 3211(a)(1) and (7). NYU argued that petitioner did not characterize his complaints about Bhardwaj as research misconduct until the commencement of this lawsuit. NYU contended that it thoroughly...