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Adler v. Va. Commonwealth Univ.

United States District Court, E.D. Virginia, Richmond Division

May 1, 2017

STUART P. ADLER, Plaintiff,
v.
VA. COMMONWEALTH UNIV., MICHAEL RAO, JEROME STRAUSS, III, and ELIZABETH RIPLEY, Defendants.

          OPINION

          John A. Gibney, Jr., United States District Judge.

         On May 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.

         Establishing 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 against VCU.

         Adler has sued Strauss and Ripley in their individual capacities for defamation.

         The 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").

         Adler's 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.

         His 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.

         The Court, therefore, grants the defendants' motions for summary judgment on all claims.

         I. BACKGROUND[1]

         Born in 1946, Adler began working at VCU in the late 1970s and attained tenure in 1983. Adler specialized in pediatric infectious disease.

         A. The Settlement Agreement

         In 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.)

         Throughout 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.)

         In late 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.

         Adler 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.

         B. The IND/IDE Policy

         On June 25, 2014, VCU announced a new policy, the "IND/IDE Policy." "IND" stands for investigational new drug, and "IDE" stands for investigational device exemption.[2] 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.)

         The FDA 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.

         VCU 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.)

         Adler's inability-or unwillingness-to comply with the IND/IDE Policy set off a new series of spats with VCU.

         On 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.)

         On 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. (Id.)

         Robb 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.)

         Adler 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.)

         A few 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 the foundation.

         On 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.

         On 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.

         Ripley 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.

         In 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.)

         Adler 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.)

         At some 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.)

         C. ...


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