                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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

                                                3
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

                                              4
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

                                                5
      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


                                           6
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.

                                            7
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



                                            8
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

                                              9
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

                                             10
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

                                              11
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

                                                12
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

                                            13
University of Virginia, et al., Civil No. 3:08cv00048 (W.D. Va.

Dec. 9, 2008).

                                                       AFFIRMED




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