Cominelli v. Rector and Board of Visitors of UVa

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 Fleming,

Office of the General Counsel, UNIVERSITY OF VIRGINIA,

Charlottesville, Virginia; Peter R. Messitt, Senior Assistant

Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,

Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Dr. Fabio Cominelli commenced this action against the

University of Virginia and the Chair of its Department of

Medicine after he was relieved of all administrative positions

at the School of Medicine. He alleged that by terminating him,

the defendants (1) tortiously interfered with business

opportunities that he had at the University of Maryland, (2)

defamed him, (3) denied him due process, and (4) wrongfully

terminated his positions in breach of contract. On the

defendants’ motion to dismiss under Federal Rule of Civil

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. During his tenure as Chief, the Division expanded

dramatically, gaining national recognition and producing a

profit of $5 million over a twelve-year period. Dr. Cominelli

also founded the Digestive Health Center of Excellence and

served as its Director. His position as Director of the Center

was “a five year appointment.” Over a six and one-half year

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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 at the University of

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Maryland. After several visits and interviews, the University

of Maryland 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. In the interim, he and the

Dean of Maryland’s School of Medicine scheduled a telephone

conference for June 12, 2007, to finalize details of the

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 was terminating Cominelli’s

administrative appointments as Chief of the Division and

Director of the Center. He was not terminated as a member of

the faculty. 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.” The letter explained that Strieter was exercising his

discretion to remove Cominelli from these appointments in

response to

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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.” A couple of days later, someone

who received the email circulated it more widely within the

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

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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 that the University and Dr.

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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

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University in Count I and amended Count IV to name only

Strieter, in his individual capacity.

The district court granted the defendants’ motion to

dismiss and denied Cominelli’s motion to amend. In its

memorandum opinion, the court explained that it was denying

Cominelli’s motion to amend on the ground that the proposed

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. The district court found

that Cominelli’s complaint also failed to allege facts

sufficient to state a plausible due process claim based on the

deprivation of a liberty interest because (1) the alleged

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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 its discretion to retain jurisdiction over

Cominelli’s state-law claims, the district court noted that

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. The court also

dismissed this claim against Strieter as failing to state a

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

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claim by substituting the Commonwealth for the University. The

court also dismissed Count II, which was pleaded as an

alternative to Count I in the event the court found that

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 dismissed Count VI’s wrongful

termination/breach of contract claim for several reasons.

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

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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, having concluded that Cominelli had failed to

state a claim in each substantive count, the 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. He also contends

that he alleged a plausible due process claim based on the

deprivation of a liberty interest because Strieter’s emailed

statement that he had removed Cominelli “in response to an

ongoing personnel matter” was made in the course of a

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 that by removing him from his administrative

positions and sending an email to members of the Division

announcing that his removal was “in response to an ongoing

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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 his complaint states a plausible

defamation claim because Strieter’s statement falsely implied

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 § 2.2-

814 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

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University of Virginia, et al., Civil No. 3:08cv00048 (W.D. Va.

Dec. 9, 2008).

AFFIRMED

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