United States District Court, E.D. Virginia, Richmond Division
STUART P. ADLER, Plaintiff,
VA. COMMONWEALTH UNIV., MICHAEL RAO, JEROME STRAUSS, III, and ELIZABETH RIPLEY, Defendants.
A. Gibney, Jr., United States District Judge.
11, 2015, Virginia Commonwealth University ("VCU")
told Dr. Stuart P. Adler that it would not renew his contract
for another year. VCU says that it took this action because
Adler had not complied with its policies. Adler counters that
this reason is pretext, and that VCU really fired him because
of his age. Adler also claims that, after his termination,
VCU took various additional actions that violated his rights
to due process. Finally, Adler claims that two VCU officials
defamed him. Because of these alleged wrongs, Adler has sued
VCU and three VCU officials.
the true parties in interest in this case is a somewhat
convoluted process. Adler has raised age discrimination
claims against two individuals, Dr. Michael Rao and Dr.
Jerome Strauss, III, in their official capacities as VCU
officials. He has also filed official capacity claims against
Strauss and Dr. Elizabeth Ripley for constitutional
violations. VCU's status in the case is unclear. On the
one hand, Adler has listed VCU in the caption and
"parties" section of his second amended complaint,
but he has not included any claims against VCU as an entity.
On the other hand, a suit against an official in his or her
official capacity is a suit against the entity for which they
work. Hafer v. Melo, 502 U.S. 21, 25 (1991). Either
way, the ultimate disposition of this case precludes relief
has sued Strauss and Ripley in their individual capacities
defendants have moved for summary judgment. The record shows
that VCU fired Adler for legitimate, non-discriminatory
reason, not in violation of the Age Discrimination in
Employment Act (the "ADEA").
constitutional claims have several failings. First, they are
barred by the Eleventh Amendment. Second, Adler has received
all the process due under the Constitution. Third, VCU did
not publish any false statements in conjunction with
Adler's termination and therefore did not violate
Adler's liberty interests.
defamation claims fail against the individual defendants.
Adler has not produced admissible evidence that Strauss
published the alleged defamatory statement. Although Ripley
did publish an internal statement about Adler, qualified
privilege protects her.
Court, therefore, grants the defendants' motions for
summary judgment on all claims.
1946, Adler began working at VCU in the late 1970s and
attained tenure in 1983. Adler specialized in pediatric
The Settlement Agreement
2011, the Chair of the Department of Pediatrics, Dr. Bruce
Rubin, reduced Adler's salary, citing poor job
performance. (VCU Ex. 3.) Adler filed a grievance, and the
VCU Grievance Board recommended against the salary reduction.
(VCU Ex. 3.) On January 25, 2012, Rao, President of VCU,
accepted the recommendation and restored Adler's salary.
(VCU Ex. 4.)
the remainder of 2012, Adler viewed a host of actions by VCU
as retaliation for winning his grievance. His objections led
to a series of internecine squabbles, including grievances
and a threatened charge of discrimination. (See
Adler Exs. 38, 39, 40.)
2012, the parties entered into mediation and, at least for
the moment, resolved their contretemps. On December 17, 2012,
the parties executed a Settlement and Release Agreement (the
"Settlement Agreement"). (VCU Ex. 5.) Under the
Settlement Agreement, Adler agreed to retire from his tenured
faculty position as of March 31, 2013. VCU would then offer
Adler a position as an adjunct research professor in the
Department of Microbiology, beginning May 1, 2013, and
continuing through June 30, 2014. "Subject to Adler
performing satisfactorily and receiving acceptable annual
evaluations of his performance, his employment contract
[would] be renewed in each of the succeeding four years,
beginning July 1, 2014, for a 12 month term." (VCU Ex.
5, at ¶ 4(A).) If Adler accepted the position, he agreed
to comply "with all University policies for faculty and
complete all required reporting, including, but not limited
to, University policies on Outside Professional Activity and
Conflict of Interest." (Id. at ¶ 5.) The
parties agreed to release each other from all claims, with
Adler specifically agreeing to release any claim he had at
that time arising under the ADEA.
retired from his tenured position as agreed, and then began
as an adjunct research professor. After the initial
fourteen-month term, VCU renewed his contract for the period
of July 1, 2014, through June 30, 2015.
The IND/IDE Policy
25, 2014, VCU announced a new policy, the "IND/IDE
Policy." "IND" stands for investigational new
drug, and "IDE" stands for investigational device
exemption. VCU adopted the policy to ensure
compliance with regulations of the Food and Drug
Administration (the "FDA") related to clinical
studies involving human subjects. (VCU Ex. 1.)
must authorize studies of drugs or medical devices on humans.
The FDA's rules require a "sponsor" to apply
for permission to conduct the tests. If the FDA authorizes a
study, an "investigator" conducts the clinical
investigation, or leads the team that conducts the
investigation. The sponsor then has the responsibilities of
monitoring the investigation, maintaining certain records,
and reporting. See 21 C.F.R. §§
312.50-312.60. The FDA allows one person, a
"sponsor-investigator, " to assume the roles and
responsibilities of both the sponsor and the investigator.
The FDA communicates with the sponsor or sponsor-investigator
about the IND or IDE, and will not communicate with a
research institution, such as VCU, unless the sponsor or
sponsor-investigator gives permission.
adopted the IND/IDE Policy to oversee and track all VCU
faculty-held INDs or IDEs. VCU designated Ripley as Clinical
Research Compliance Officer (the "CRCO") to
administer the policy. The IND/IDE Policy requires VCU
faculty to report all INDs and IDEs, to submit all
correspondence with the FDA, and to submit new IND/IDE
applications to the CRCO before filing them with the FDA.
(VCU Ex. 1, at 11.) If a sponsor (or sponsor-investigator)
leaves VCU, the sponsor must either transfer sponsorship to
another VCU faculty member or obtain permission to take the
IND or IDE with him. (Id. at 16.)
inability-or unwillingness-to comply with the IND/IDE Policy
set off a new series of spats with VCU.
September 15, 2014, Ripley sent an email to nine people,
including Adler, as a reminder that their IND/IDE reports
were due that day. (VCU Ex. 9.) A week after the due date, on
September 22, 2014, Ripley spoke with Adler about the new
policy and the reporting requirement. (VCU Ex. 10.) She also
sent him a follow-up email with not only a reminder to fill
out his report but also, to make the task easier, a reporting
link. (Id.) Adler submitted some, but not all, of
the information on October 1, 2014, (VCU Ex. 33), so Ripley
emailed him to clarify that he must submit all the required
information. (VCU Ex. 11.)
October 20, 2014, Adler responded, challenging the IND/IDE
Policy generally. (Id.) Adler also said that he
could not disclose the requested information because he had
confidentiality agreements with his commercial partners on
the INDs. (Id.) On October 21, 2014, Susan Robb, the
Senior Associate Vice President for Research Administration
and Compliance, responded to Adler, further explaining the
reasons for the policy and asking him to submit the requested
information by October 28, 2014. (VCU Ex. 13.) Robb warned
that if Adler balked, VCU would place a hold on his studies.
also asked Adler to disclose any confidentiality agreements,
because VCU needed to execute them, not the individual
faculty member. (Id.) Robb copied three people on
the email "to ensure that all are aware of [Adler's]
concerns and [Robb's] response": Strauss, III, Dean
of the School of Medicine; Dr. Francis Macrina, Vice
President of Research; and Ripley. (Id.)
responded later that day, changing his story about the
confidentiality agreements. (VCU Ex. 12.) He said he did not
have any active confidentiality agreements, but had an
"explicit understanding with each partner to maintain
confidentiality." (Id.) Adler also complained
about the policy. Finally, he told Robb he could not meet the
October 28, 2014, deadline. (Id.) Robb followed up
later that evening, providing a list of the documents Adler
needed to submit. (VCU Ex. 13.) By letter to Robb dated
October 24, 2014, Adler voiced his concerns with the IND/IDE
Policy, and asked for a meeting with Robb, Macrina, and a VCU
attorney. (Adler Ex. 47.)
weeks later, in an effort to get around the IND/IDE Policy,
Adler founded the CMV Research Foundation. (Adler Ex. 12, at
18:8-19.) According to Adler, he set up the CMV Research
Foundation to have an option available in case he could not
find another third party to take over sponsorship of his
INDs. (Adler Ex. 13, at 86:3-9.) He did not tell VCU about
December 1, 2014, without clearing it with VCU, Adler
submitted a new IND application to the FDA as a
sponsor-investigator. (VCU Ex. 14.) The FDA received the
application and assigned it an IND number: IND 125064.
December 2, 2014, Adler met with Ripley, Robb, and Macrina to
discuss his INDs. (See VCU Ex. 17; VCU Ex. 33, at
3.) The parties agreed that Adler could transfer his INDs to
third parties, but that VCU would need documentation. (VCU
Ex. 33, at 3.) By letter to Macrina dated December 15, 2014,
Adler outlined his plan for his INDs. (VCU Ex. 17.) First, he
planned to transfer the sponsorship on two of his INDs: IND
1181 to CMV Research Foundation, and IND 16166 to Trellis
Inc. (Id.) Transferring the sponsorship of the INDs
would move them outside the purview of the IND/IDE Policy.
Next, for IND 13411, Adler asked to remain the
sponsor-investigator, but asked for an exemption from
compliance with the IND/IDE Policy. (Id.) Adler did
not mention his new IND, IND 125064.
responded by letter dated December 19, 2014. (VCU Ex. 18.)
For the transfers, she asked for specific documentation.
(Id.) She also reminded Adler that he needed to
update his Financial Interest Report if he had a role (such
as board member) in either of the transferee entities, and
that he needed to report any outside professional activities
if he acted in any capacity beyond investigator.
(Id.) For IND 13411, Ripley said that Adler did not
need to send current documents, but warned Adler that she
would audit all faculty-held INDs, including Adler's, in
the first six months of 2015. (Id.) She asked for
all the requested information by January 23, 2015.
(Id.) Adler did not provide all the information.
March 2015, Adler submitted to VCU a request to begin a new
study. (See VCU Ex. 20.) On March 24, 2015, Tricia
Zeh, Executive Director for Research Administration, emailed
Adler to tell him that VCU needed Adler to correct certain
deficiencies before VCU would approve the new study. (VCU Ex.
20.) Among other items, Zeh noted that Adler would need to
comply with the IND/IDE Policy because he would serve as the
sponsor-investigator, and would need to work with Ripley in
regards to the IND. (Id.) On March 31, 2015, Zeh
reiterated that VCU could not approve the new study until
Adler complied with the IND/IDE Policy for his existing INDs.
(VCU Ex. 21.) This email noted a May 2015 deadline for
providing the required information on his existing INDs.
(Id.) Another email on April 2, 2015, reiterated the
need to comply with the IND/IDE Policy before VCU could
approve the new study. (VCU Ex. 22.)
emailed Ripley on April 3, 2015, about his existing INDs.
(VCU Ex. 23.) Ripley responded later that day saying that she
was "glad to work with" Adler to bring the INDs
into compliance. (VCU Ex. 24.) She again noted what needed to
happen for each IND. (Id.)
point after this communication, Ripley focused on the
Adler-formed CMV Research Foundation, to which Adler planned
to transfer some of his INDs. (VCU Ex. 28.) On April 28,
2015, she emailed him a list of items that needed
clarification, including his role with the foundation. She
also reminded him to update his Financial Interest Report
within thirty days of acquiring a new interest. (VCU Ex. 29.)
Adler responded later that day and sent more information
later that week. (VCU Ex. 30; VCU Ex. 31.)