Joshi v. Trs. of Columbia Univ.

21-418
Joshi v. Trs. of Columbia Univ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 9th day of August, two thousand twenty-two.
PRESENT:
DENNY CHIN,
RICHARD J. SULLIVAN,
EUNICE C. LEE,
Circuit Judges.
_____________________________________
SHAILENDRA JOSHI,
Plaintiff-Appellant,
v. No. 21-418
THE TRUSTEES OF COLUMBIA UNIVERSITY IN
THE CITY OF NEW YORK, COLUMBIA
UNIVERSITY IN THE CITY OF NEW YORK,
COLUMBIA UNIVERSITY COLLEGE OF
PHYSICIANS AND SURGEONS,
Defendants-Appellees.
_____________________________________
For Plaintiff-Appellant: JONATHAN JEREMIAS, McLaughlin &
Stern LLP, New York, NY (Bruce
Alden Langer, New York, NY, on the
brief).
For Defendants-Appellees: ANDREW W. SCHILLING (Brian J.
Wegrzyn, Dana W. Kumar, on the brief),
Buckley LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (John G. Koeltl, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-Appellant Dr. Shailendra Joshi appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees The Trustees of Columbia
University in the City of New York, Columbia University in the City of New York,
and Columbia University College of Physicians and Surgeons (collectively,
“Columbia”). Joshi, an anesthesiologist at Columbia University College of
Physicians and Surgeons, alleges that Columbia retaliated against him after he
reported his colleague for research misconduct. Joshi argues that this alleged
retaliation violated (1) Columbia’s Research Misconduct and Non-Retaliation
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Policies, which Joshi contends constitute a contract between himself and
Columbia, and (2) section 715-b(a) of the New York Not-for-Profit Corporation
Law, which requires certain not-for-profit corporations to “adopt . . . a
whistleblower policy to protect from retaliation persons who report suspected
improper conduct,” N.Y. Not-for-Profit Corp. Law § 715-b(a). In granting
summary judgment for Columbia, the district court concluded that the undisputed
evidence demonstrated that Columbia’s actions were not motivated by a desire to
retaliate against Joshi for reporting research misconduct and that Columbia
complied with the requirements of section 715-b(a).
We review a district court’s grant of summary judgment de novo.
See Rosenberg v. MetLife, Inc., 493 F.3d 290, 291 (2d Cir. 2007). We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
Even assuming that Columbia’s Research Misconduct and Non-Retaliation
Policies constitute an employment contract, Joshi’s breach of contract claim still
fails. The Non-Retaliation Policy prohibits retaliation against any person who
reports compliance or ethics concerns or who seeks guidance on compliance or
ethics. That policy defines “[r]etaliation” as “any action, statement, or behavior
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that is designed to punish an individual for filing a compliance report, cooperating
with a compliance investigation, seeking guidance regarding a compliance
concern or to deter one from taking such action.” App’x at 69. Examples of
retaliation under the policy include “intimidation[;] adverse action against an
employee regarding the terms and conditions of employment, such as termination,
demotion, or suspension[;] as well as related threats of such actions.” Id. Joshi
contends that Columbia retaliated against him when it (1) delayed his promotion
to full professor; (2) denied his appointment to Division Chief; (3) refused to give
him a joint appointment with the Department of Neurology; (4) reduced his
allotment of non-clinical time; (5) required him to perform electroconvulsive
therapy, a type of clinical work that he disliked; (6) closed his lab; and
(7) permitted the Division Chief to speak ill of Joshi to their colleagues. But Joshi
identifies no evidence suggesting that these actions were motivated by a desire to
retaliate against him for reporting research misconduct, and he fails to rebut the
ample evidence of Columbia’s legitimate, neutral justifications for each of the
challenged actions. We therefore reject Joshi’s breach-of-contract claims.
We also reject Joshi’s claims for breach of the implied covenant of good faith
and fair dealing. The implied covenant of good faith and fair dealing has a
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narrow scope, and “New York law does not recognize a separate cause of action
for breach of the implied covenant of good faith and fair dealing when a
breach[-]of[-]contract claim, based upon the same facts, is also pled.” Cruz v.
FXDirectDealer, LLC, 720 F.3d 115, 125 (2d Cir. 2013) (alteration omitted). Joshi’s
claims for breach of contract and breach of the implied covenant of good faith and
fair dealing are based on the same facts related to Columbia’s alleged retaliation
against him. Thus, as a matter of law, Joshi cannot assert a claim for breach of the
implied covenant of good faith and fair dealing.
Joshi’s promissory estoppel claims fail for the same reason. See Grossman
v. N.Y. Life Ins. Co., 935 N.Y.S.2d 643, 645 (2d Dep’t 2011) (holding that “the
existence of valid and enforceable written contracts precludes recovery under . . .
promissory estoppel” when the contract and promissory estoppel claims “arise
out of the same subject matter”). Moreover, even in the absence of an enforceable
contract, Joshi’s promissory estoppel claim would still fail, since – as noted above –
there is no evidence that Columbia retaliated against him for reporting alleged
research misconduct. See Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44
(2d Cir. 1995) (requiring plaintiffs who assert promissory estoppel claims under
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New York law to show that they have been injured by the defendants’ broken
promise).
Finally, we reject Joshi’s claim under section 715-b(a) of the New York
Not-for-Profit Corporation Law. Section 715-b(a) provides that certain
not-for-profit corporations must “adopt . . . a whistleblower policy to protect from
retaliation persons who report suspected improper conduct.” N.Y. Not-for-Profit
Corp. Law § 715-b(a). But even if section 715-b(a) provides for a private right of
action – a question which, as the district court noted, has divided New York courts,
see Joshi v. Trs. of Columbia Univ., 515 F. Supp. 3d 200, 224 (S.D.N.Y. 2021) – the
undisputed evidence reflects that Columbia complied with the statute by
implementing the relevant policies to protect whistleblowers and that it adhered
to those policies. In particular, Columbia has shown that it conducted a thorough
investigation of Joshi’s allegation of research misconduct, offered to protect him
against retaliation, and then investigated his claims that he was the subject of
retaliation.
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We have considered Joshi’s remaining arguments and find them to be
meritless. As a result, we AFFIRM the district court’s judgment.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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