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Magistrate backs former UB law school dean in suit over firing of professor

For three years, allegations of perjury divided the University at Buffalo Law School.

Faculty took sides when the accusations were first levied against then Dean Makua W. Mutua, and it was that divisiveness that contributed to Mutua’s resignation last year.

On Wednesday, a federal judge recommended dismissing the wrongful termination suit that spawned the perjury allegations and called for sanctioning one of the lawyers who pursued them.

U.S. Magistrate Judge H. Kenneth Schroeder, in a recommendation that still must be approved by a district judge, ruled in favor of Mutua and found that the former law school instructor who sued him was properly terminated after his three-year appointment at UB was complete.

Schroeder’s ruling is a setback for Jeffrey Malkan, 61, the former law school employee who claims Mutua wrongfully fired him and then lied under oath about it. He also claims Mutua ruined his career by repeatedly defaming him in court documents.

“I am very pleased with the magistrate’s decision, which affirms the falsity and malice of the charges brought by Mr. Malkan,” Mutua said in a statement Wednesday.

The ruling came just weeks after university officials, citing Malkan’s emails to former colleagues and its policy on workplace violence, banned him from campus.

In some of his emails, Malkan mentioned mass shootings, a reference he said at the time to Mutua’s use of the word “postal” to describe him. University police investigated the emails and determined Malkan was not a threat, but university officials overruled them.

In a separate ruling Wednesday, a State Supreme Court judge dismissed a defamation suit filed by Malkan against current Law School Interim Dean James Gardner. The suit was filed after UB barred Malkan from campus.

“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.”

Malkan, who has been unemployed since he left UB in 2009, said he was even more shocked by Schroeder’s ruling this week.

“This decision is unfathomable to me, because this isn’t even a close case, either on the facts or the law,” he said in a statement Wednesday, “but I have to believe that I will eventually get a fair hearing.”

Malkan filed his suit at the same time a rift was developing among law school faculty, a dispute that led to a near vote of no confidence against Mutua and an internal review that painted a portrait of a deeply divided institution.

At the center of it all was Mutua, a Harvard Law graduate and internationally known human rights activist. He later resigned as dean but stayed on as a faculty member.

Schroeder, who is a graduate of UB Law School, ruled that Malkan’s claims of perjury were irrelevant to his wrongful termination suit. He said Mutua, right or wrong, was testifying honestly and to the best of his recollection.

At the heart of Malkan’s suit is a 2006 meeting at which faculty members took up the question of Malkan’s promotion from associate clinical professor to full clinical professor. He also was director of the school’s Legal Research and Writing Program.

“The court can fathom no reason to fixate on Professor Mutua’s recollection of this meeting other than to harass Professor Mutua needlessly, increase the costs of this litigation and unduly burden the court,” the judge said in his decision.

Schroeder also fined Rick Ostrove, Malkan’s former Long Island attorney, $10,000 for his conduct in pursuing the perjury allegations with lawyers from the other side.

Ostrove thinks the judge erred in ordering sanctions against him and plans to challenge them in court. He also thinks the best evidence of Mutua’s lying are the numerous people who were at the meeting and have verified Malkan’s account of what happened that day in 2006.

“Every single witness that has come forward to say something has said something that is contrary to what Mutua said,” Ostrove said. “Not one person has stepped forward to confirm his side of the story.”

Faculty members who were at that 2006 meeting say the vote was close, but Malkan’s promotion was approved. They say John B. Simpson, who was then UB president, confirmed it in a letter to Malkan.

Mutua, who was named interim dean a year later, removed Malkan from his research and writing post in 2008 and, a few months later, fired him from his clinical professor’s post as well.

Malkan responded by filing a complaint with the state Public Employee Relations Board – PERB ruled against him – and later a civil lawsuit demanding $1.3 million in damages. In the suit, he claims Mutua lied about the meeting while under oath at a PERB hearing.

“I don’t know how the magistrate concluded that the evidence of perjury I placed before him was irrelevant,” Malkan said of Schroeder’s decision.

Malkan said he will appeal to U.S. District Judge Richard J. Arcara, the judge who will review Schroeder’s recommendation, and, if necessary, to the federal appeals court in Manhattan.