Fabio Cominelli v. Rector

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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,

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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Unpublished opinions are not binding precedent in this circuit.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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14
University of Virginia, et al., Civil No. 3:08cv00048 (W.D. Va.
Dec. 9, 2008).
AFFIRMED

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