Court Reinstates Retaliation Suit

Researcher's Retaliation Suit Against University Is Reinstated
The New York Law Journal by Mark Hamblett  -  May 9, 2012

A scientist who charges he was fired from New York University in retaliation for reporting suspected research misconduct has had his lawsuit reinstated by a state appeals court.  A unanimous panel of the Appellate Division, First Department, restored causes of action for retaliation and failure to follow disciplinary procedures brought by David O'Neill against NYU, NYU Hospitals Center and NYU Langone Medical Center.  O'Neill was hired in 2002 as a non-tenured, full-time faculty member whose contract was renewed on a year-to-year basis. He worked as assistant director of the Vaccine/Cell Manipulation Core Laboratory for the NYU Cancer Institute, or Vaccine Lab, and oversaw the construction of the Vaccine Lab in 2004 and 2005.  His supervisor was Nina Bhardwaj, and O'Neill worked with her on a clinical trial comparing a new "dentritic cell" vaccine for skin cancer with a more expensive decades-old mineral oil Montanide vaccine. Bhardwaj was the co-inventor and patent holder of the new vaccine, and she named O'Neill as the lead author for a paper on the trial.  The clinical trial showed the new vaccine to be less effective than the old, but O'Neill later charged that Bhardwaj tried to shape presentations on the clinical study to downplay the negative results.  In August 2009, he e-mailed a supervisor and co-authors of the research paper to report misconduct, calling Bhardwaj's new analyses "flawed and misleading and therefore invalid."  As a result, he alleged that a promised promotion was stalled and that a supervisor handed him a letter saying his "lingering…anger" was hurting the lab.  O'Neill went to a meeting to start the grievance process on May 3, 2010, and was handed a termination letter for "unprofessional behavior," including an April 22 phone call with a supervisor, Dr. William Carroll, in which O'Neill's "tone became very argumentative" and his "voice rose in anger."  O'Neill filed a hybrid plenary action and CPLR Article 78 proceeding claiming NYU could only fire him for cause.  But Manhattan Supreme Court Justice Alice Schlesinger dismissed the case under CPLR 3211(a)(1) and (7) after NYU argued that O'Neill did not characterize his complaints about Bhardwaj as research misconduct until after he filed the lawsuit.  Schlesinger found that NYU appointed O'Neill as a non-tenured faculty member with an unspecified employment period.

On appeal, O'Neill argued that the renewal letter he received in February 2010 for the 2010-2011 academic year, taken together with the Faculty Handbook stating that non-tenured appointments "shall be for a definite period of time, not exceeding one academic year," created employment for one year with termination only for cause. He also argued that school policies and guidelines protected him from termination.  The First Department accepted these arguments in O'Neill v. New York University, 651322/10, with Justice Karla Moskowitz writing the opinion for a panel of Justices Richard Andrias, John Sweeny, Dianne Renwick and Helen Freedman.  "Here, the NYU Code of Ethics, the Code of Conduct, the Non-Retaliation Policy and the Research Misconduct Policies, in combination, include NYU's express promise that it will protect employees from reprisal for reporting suspected research misconduct," Moskowitz said in restoring the retaliation claim. "Thus, we can infer petitioner's reliance on NYU's policies, given the complaint's allegations of his compliance with those policies by reporting his concerns of suspected research misconduct."  The court upheld Schlesinger's dismissal of a defamation claim, finding that the challenged statements of Carroll as to O'Neill's "anger" and "unprofessional conduct" fell within the qualified privilege for communications regarding a work-related common interest.  "The complaint fails to overcome this privilege because it contains no more than conclusory allegations of malice," Moskowitz wrote.  But the panel reinstated the claim that NYU failed to follow its own disciplinary procedures, saying O'Neill had "sufficiently alleged that NYU's conduct was arbitrary and capricious when it violated its own rules and regulations by summarily dismissing him during his one-year, fixed appointment term without cause."  Debra Raskin and Liane Rice of Vladeck, Waldman, Elias & Engelhard represented O'Neill.  "We're thrilled," Raskin said yesterday. "And we think it's really important that the rights employees are promised in handbooks be enforced."  Edward Cerasia and Aaron Warshaw of Ogletree, Deakins, Nash, Smoak & Stewart represented NYU.  An inquiry committee convened by NYU's School of Medicine concluded that "there is no credible evidence suggesting that Dr. Bhardwaj committed any research misconduct."  Mark Hamblett can be contacted at mhamblett@alm.com.