Fabio Cominelli v. Rector and Board of Visitors o

Filing 920100125

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2391

FABIO COMINELLI, Plaintiff - Appellant, v. RECTOR AND BOARD OF VISITORS OF THE UNIVERSITY OF VIRGINIA, W. H. Fralin, Rector and A. Diamonstein, S. Dorsey, H. Dragas, T. Farell, R. Hardie, G. Key, A. Ligon, V. Mastracco, L. Payne, D. Pippin, W. Thompson, E. Vaughan, J. Wynne, A. Getachew in their individual capacities; ROBERT M. STRIETER, in his official and individual capacity, Defendants - Appellees.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:08-cv-00048-nkm-bwc)

Argued:

October 29, 2009

Decided:

January 25, 2010

Before NIEMEYER and DUNCAN, Circuit Judges, and Benson E. LEGG, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Edward B. Lowry, MICHIE, HAMLETT, LOWRY, RASMUSSEN & TWEEL, PC, Charlottesville, Virginia, for Appellant. Richard Croswell Kast, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia, for Appellees. ON BRIEF: David W. Thomas, MICHIE, HAMLETT, LOWRY, RASMUSSEN & TWEEL, PC, Charlottesville,

Virginia, for Appellant. Margaret A. Browne, Lynne Office of the General Counsel, UNIVERSITY OF Charlottesville, Virginia; Peter R. Messitt, Senior Attorney General, OFFICE OF THE ATTORNEY GENERAL, Virginia, for Appellees.

Fleming, VIRGINIA, Assistant Richmond,

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Dr. University Fabio of Cominelli Virginia commenced the this of action its against Department the of

and

Chair

Medicine after he was relieved of all administrative positions at the School of Medicine. the defendants He alleged that by terminating him, interfered with business

(1) tortiously

opportunities that he had at the University of Maryland, (2) defamed him, (3) denied him in due process, of and (4) wrongfully On of the Civil

terminated defendants'

his

positions to

breach under

contract. Rule

motion

dismiss

Federal

Procedure 12(b)(6) for failure to state a claim, the district court dismissed Cominelli's complaint and denied his motion to amend the complaint, concluding that both his complaint and his proposed amended complaint failed to state a claim. We affirm

substantially for the reasons given by the district court. The complaint alleged that the University hired Dr.

Cominelli in 1995 to serve as a clinical faculty member.

He was

also appointed Chief of the Division of Gastroenterology and Hepatology. dramatically, During his tenure as Chief, the Division expanded gaining national recognition and producing a

profit of $5 million over a twelve-year period. also founded the Digestive Health Center of

Dr. Cominelli Excellence and

served as its Director.

His position as Director of the Center Over a six and one-half year 3

was "a five year appointment."

period, the Digestive Health Center earned over $37 million in profits for the University's Medical Center. The complaint alleged that Dr. Cominelli maintained an

excellent relationship with his superiors until July 2006, when Dr. Robert Strieter became Chair of the Department of Medicine. Shortly after Strieter's arrival, Cominelli agreed to bring the Digestive Health Center under the control of the Department. A

month or two later, the School of Medicine's audit department began an audit of the entire Division. Although it was

purported to be a routine audit, Dr. Cominelli alleged that it was instigated by Dr. Strieter and Elizabeth Wildman, the

Department's Chief Operating Officer, and targeted him and, to a certain extent, his wife, who was also a member of the Division. Cominelli learned in January 2007 that Strieter and Wildman had made clear at meetings that the purpose of the audit was to gather evidence to justify Cominelli's removal from his

positions as Chief of the Division and Director of the Center, with Wildman stating that they hoped the audit would provide a "silver bullet." Dr. Cominelli sought assistance from the

Director of Faculty and Staff Employee Relations and from Dr. Arthur Garson, the Dean of the School of Medicine, but no action was taken to address his concerns. In early 2007, Dr. Cominelli applied for the position of Chair of the Department of Medicine 4 at the University of

Maryland. of Maryland

After several visits and interviews, the University informed him that he had been selected for the

position and invited him to come to the school on June 25, 2007, to sign an employment agreement. Dean of Maryland's for June School 12, of In the interim, he and the scheduled a telephone of the

Medicine to

conference

2007,

finalize

details

school's offer. On June 11, 2007, Dr. Cominelli was scheduled to meet with the auditor to continue discussions about the audit but was, instead, directed to meet at that time with Dr. Strieter and Dean Garson. At the meeting, Cominelli was given a letter,

signed by both Dr. Strieter and Dean Garson, informing him that, effective immediately, Strieter as was Chief terminating of the Cominelli's and

administrative

appointments

Division

Director of the Center. the faculty.

He was not terminated as a member of

The letter stated that "Division Chiefs and Center

Directors serve at the discretion of their respective Chairs and the Dean of the School of Medicine" and noted that "[y]our

appointment as Center Director was subject to review at the end of five years, and your appointment as Division Chief is subject to removal as provided in Section 11.8 of the Clinical Staff Bylaws." discretion response to 5 The letter explained that Strieter was exercising his to remove Cominelli from these appointments in

significant concerns about your leadership of the Division and Center, including a high rate of faculty departures, repeated reports of unfair allocation of financial resources, failure to make funds available as committed in start up packages, inappropriate restrictions on access to research materials, and numerous instances of poor management practices and violations of University polices as documented in a recent University Internal Audit investigation with which you are familiar. After the meeting, Strieter sent an email to the members of the Division announcing that he had "exercised [his] discretion" and removed Cominelli from his administrative appointments as Chief of the Division and Director of the Center "in response to an ongoing personnel matter." who received the A couple of days later, someone it more widely within the

email circulated

Department of Medicine. The Dean of Maryland's School of Medicine heard of

Cominelli's removal from his administrative positions and, on June 12, 2007, called Cominelli to find out what had happened. The Dean stated that he was highly concerned about the

situation.

Within a few days after the call, the University of

Maryland ended its discussions with Cominelli. Cominelli learned that a number of other high-level

colleagues at other institutions had also heard of his removal from the administrative positions. Well after his removal from the administrative positions, Cominelli was provided a copy of the draft audit report, which

6

focused on expenses relating to some trips he had taken in his capacity as Director and Chief during the prior six years. The

majority of the issues related to the fact that some trips had been financed by other entities, as well as by the University. Cominelli reimbursed the University for the expenses that were incorrectly accounted for. Based on these events, Cominelli's complaint alleged his belief that Dr. Strieter had sent the email following the June 11 meeting with full knowledge that it would be interpreted as a statement that Cominelli was "guilty of some grievous personal wrongdoing" and that it would be republished in the broader

academic medical community, likely affecting Cominelli's pending appointment at the University of Maryland and more generally his reputation in medical circles. He also alleged that Strieter

and Wildman were under the impression that Cominelli was going to announce his departure on June 12 and were anxious to

engineer his termination before Cominelli reached agreement with the University of Maryland. Cominelli further alleged that his

termination violated University and Department policies in that he never received evaluations in his capacity as faculty member, Chief of the Division, or Director of the Center, except for one, an evaluation as Chief of the Division in 2006. In his complaint, Cominelli sued the defendants in seven counts, alleging for Count I 7 that the University and Dr.

Strieter tortiously interfered with his business expectancy with the University of Maryland; for Count II, that, in the event the court should decide that Strieter was not acting in the scope of his employment, Strieter, in his individual capacity, tortiously interfered with his business expectancy; for Count III, that Strieter, in his individual capacity, defamed him by publishing an email stating that he was removing Cominelli from his

administrative positions "in response to an ongoing personnel matter"; for Count IV, that the University and Strieter, in his representative capacity, denied him due process of law, in

violation of the U.S. Constitution and 42 U.S.C. § 1983; for Count V, that the University and Strieter, in his representative capacity, denied him due process of law, in violation of the Virginia Constitution; for Count VI, that the University

wrongfully terminated him from his position as Center Director in breach of contract; and for Count VII, that the University and Strieter were liable to him for punitive and exemplary

damages. The defendants filed a motion to dismiss, in response to which Cominelli filed an opposition as well as a motion to amend his complaint, attaching a copy of his proposed amended

complaint.

In the proposed amended complaint, Cominelli, among

other changes, substituted the Commonwealth of Virginia for the

8

University

in

Count

I

and

amended

Count

IV

to

name

only

Strieter, in his individual capacity. The dismiss district and denied court granted the motion defendants' to amend. it was the motion In to its

Cominelli's the to court on

memorandum Cominelli's

opinion, motion

explained the

that

denying proposed

amend

ground

that

amended complaint also failed to state a claim and that granting the motion to amend would therefore be futile. With respect to

the legal sufficiency of the complaint, the district court found that Cominelli had not alleged facts sufficient to suggest that he had a property interest in the administrative position of Center Director that would trigger the federal due process

clause's protections because (1) he had been merely demoted to a general faculty position, rather than terminated, and such an intra-departmental demotion could not implicate a protected

property interest; and (2) the complaint's allegation that his "position as Director of the Center was a five year appointment" was insufficient to rebut the state-law presumption that the position was at-will, especially given that the complaint itself indicated that Cominelli had held the position for more than five years at the time he was removed. that Cominelli's complaint also The district court found to allege facts

failed

sufficient to state a plausible due process claim based on the deprivation of a liberty interest 9 because (1) the alleged

defamatory statement that was the basis for his claim was not made during the course of a termination; and (2) the facts, as alleged in the complaint, indicated that Strieter had in fact removed Cominelli from his positions "in response to an ongoing personnel matter" and that, as a result, Cominelli had failed to allege facts sufficient to support his conclusory assertion that the statement was false. Exercising Cominelli's its discretion claims, to the retain district jurisdiction court noted over that

state-law

Virginia's due process protections were coterminous with federal protections and accordingly granted the defendants' motion to dismiss Count V for the same reasons given for dismissing the federal due process claim. With respect to Cominelli's state claim of tortious

interference with business expectancy, stated in Count I, the district court first noted that the Virginia Tort Claims Act's waiver of immunity did not apply to the Commonwealth's agencies and so dismissed the claim as to the University. dismissed this claim against Strieter as The court also to state a

failing

plausible claim for relief because Cominelli had not alleged facts sufficient to suggest that Strieter had intentionally

interfered with his contractual expectancy with Maryland or had used improper means to do so. For the same reasons, the

district court denied as futile Cominelli's motion to amend his 10

claim by substituting the Commonwealth for the University. court also dismissed to Count Count I in II, the which event was the pleaded as

The an that

alternative

court

found

Strieter was not acting in the course of his official capacity. Finding that the facts alleged did not suggest that Strieter had acted outside the scope of his employment, the court granted the defendants' motion to dismiss this claim. The court cited two reasons for dismissing Count III's

defamation claim.

First, the court found that it was barred by

the applicable one-year statute of limitations and that neither a tolling agreement between the parties nor equitable estoppel avoided that bar. Second, the court concluded that Count III

failed to state a plausible claim for relief because the alleged facts did not suggest that the purported defamatory statement was false. The court also of dismissed contract claim Count for VI's several wrongful reasons.

termination/breach

First, the court found that Cominelli had failed to present a pecuniary claim to the President of the University, as required by Virginia Code § 2.2-814. Second, the court found that

Cominelli had failed to state a plausible claim for breach of contract because he had not alleged the existence of a contract governing his position as Director or Chief. Third, the court

found that he had failed to state a plausible claim for wrongful 11

termination

because

(1)

his

allegations

were

insufficient

to

rebut the presumption that his position as Center Director was a form of at-will employment, and (2) he had not alleged facts to suggest his discharge violated Virginia public policy. Finally, state a claim having in concluded that Cominelli count, the had failed to

each

substantive

district

court

dismissed the complaint's Count VII for punitive and exemplary damages. On appeal, Cominelli advances numerous arguments for why the district court's dismissal of his claims and denial of his motion to amend were in error. He argues that his complaint's

allegation that his position as Center Director was "a five year appointment" was sufficient to establish that he held a

protected property interest in that position. that he alleged of a he a plausible liberty had due process because

He also contends based on the

claim

deprivation statement ongoing

interest

Strieter's "in the response course

emailed to of an a

that

removed was

Cominelli made in

personnel

matter"

significant demotion and while an audit was ongoing.

He argues

further that his complaint sufficiently alleged each element of a claim for tortious interference with a business expectancy, contending positions announcing that and by removing an email was 12 him to "in from his of administrative the to an Division ongoing

sending his

members

that

removal

response

personnel

matter,"

Strieter

used

improper

means

to

interfere

intentionally with Cominelli's negotiations with the University of Maryland's School of Medicine. He further argues that the

statute of limitations on his defamation claim was tolled by an agreement dated June 15, 2007, which he claims was actually

signed in July 2008, and that defamation claim because

his complaint states a plausible statement falsely implied

Strieter's

that Cominelli was guilty of some grievous personal wrongdoing. Additionally, Cominelli contends that the district court erred in dismissing his breach of contract claim because he had fully complied with the exhaustion requirement of Virginia Code § 2.2814 and because his complaint sufficiently alleged the existence of a contract governing his appointment as Center Director by alleging the position was "a five year appointment." Finally,

he asserts that, after dismissing the § 1983 claim, the district court abused its discretion by retaining supplemental

jurisdiction over his state-law claims and instead should have remanded them to state court, from where the action was

initially removed. After considering all of Cominelli's arguments and the

arguments of counsel and after careful review of the record, as well as the opinion of the district court, we affirm

substantially for the reasons given by the district court in its memorandum opinion. Cominelli v. The Rector and Visitors of the 13

University of Virginia, et al., Civil No. 3:08cv00048 (W.D. Va. Dec. 9, 2008). AFFIRMED

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